The African Human Rights System, Activist Forces and International Institutions

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THE AFRICAN HUMAN RIGHTS SYSTEM, ACTIVIST FORCES, AND INTERNATIONAL INSTITUTIONS

This book draws from and builds upon many of the existing approaches to the study of international human rights institutions (IHIs), especially quasi-constructivism. The author reveals some of the ways in which many domestic deployments of the African system have been brokered or facilitated by local activist forces, such as human rights NGOs, labour unions, women’s groups, independent journalists, dissident politicians, and activist judges. In the end, the book exposes and reflects upon the inherent inability of the dominant compliance-focused model to capture adequately the range of other ways – apart from via state compliance – in which the domestic invocation of IHIs like the African system can contribute, albeit to a modest extent, to the pro-human rights alterations that can sometimes occur in the self-understandings, conceptions of interest, or senses of appropriateness held within key domestic institutions within states. O B I O R A C H I N E D U O K A F O R is an Associate Professor at Osgoode Hall Law School, York University, Canada, as well as a faculty member at York’s Centre for Refugee Studies. He has served as an expert panelist for the United Nations Commission on Human Rights’ Working Group of Experts on People of African Descent.

THE AFRICAN HUMAN RIGHTS SYSTEM, ACTIVIST FORCES, AND INTERNATIONAL INSTITUTIONS By OBIORA CHINEDU OKAFOR Associate Professor Osgoode Hall Law School York University Toronto Canada

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521869065 © Obiora Okafor 2007 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2007 ISBN-13 ISBN-10

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To the evergreen and fond memory of my father, Ichie F. Okwu-Okafor (1930–2004)

CONTENTS

1 2

Acknowledgements

page x

List of abbreviations

xiii

The African human rights system, activist forces, and international institutions: an introduction

1

Conventional conceptions of international human rights institutions 12 2.1 Introduction 12 2.2 Conventional conceptions of international institutions in general 14 2.3 Conventional conceptions of international human rights institutions 40 2.4 Summary of the arguments 61

3

Conventional conceptions of the African system for the promotion and protection of human and peoples’ rights 63 3.1 3.2 3.3 3.4 3.5

Introduction 63 A brief overview of the African system 65 Conceptions of the African system as weak and ineffectual 67 Conceptions of the ideal African system as a panacea 74 Conceptions of the textual or organizational reform of the African system as the key to its success 75 3.6 Enforcement-centrism in the conventional conceptions of the African system 78 3.7 Voluntary compliance-centrism in the conventional conceptions of the African system 80 3.8 How does the African system fare overall under the conventional evaluative models? 82

vii

viii

CONTENTS

3.9

Are conventional conceptions of the African system adequate? 88 3.10 Summary of the arguments 90

4

The impact of the African system within Nigeria

91

4.1 4.2 4.3 4.4 4.5 4.6

Introduction 91 Impact on judicial decision-making and action 96 Impact on executive action 116 Impact on legislative action 127 Impact on civil society actors and struggles 134 Assessing the overall impact of the African system within Nigeria 141 4.7 Factors that have facilitated or militated against the African system’s impact within Nigeria 148 4.8 Summary of the arguments 153

5

The utilization of the African system within South Africa 155 5.1 5.2 5.3 5.4 5.5 5.6

Introduction 155 Impact on judicial decision-making and action 156 Impact on executive deliberation and action 177 Impact on legislative debate and action 186 Impact on the work of civil society actors 191 Assessing the overall impact of the African system within South Africa 200 5.7 Factors that have facilitated or militated against the African system’s impact within South Africa 208 5.8 Summary of the arguments 218

6

Limited deployment of the African system within African states: further evidence and a general evaluation 220 6.1 6.2 6.3 6.4 6.5 6.6

Introduction 220 Impact on executive thought and action 224 Impact on judicial decision-making and action 236 Impact on legislative action 245 Impact on the activities of civil society actors 250 Specifying the conditions for the optimization of the domestic impact of the African system 253 6.7 Summary of the arguments 272

CONTENTS

7

Toward an extended measure of IHI effectiveness: a quasi-constructivist perspective 273 7.1 Introduction 273 7.2 Reducing the emphasis on the domestic analogy 276 7.3 Reducing the emphasis on the textual appropriateness and/or institutional capacity of IHIs 280 7.4 Reaching beyond (while retaining) the state compliance measure 284 7.5 Constitutive role of activist forces in IHI effectiveness 285 7.6 Quasi-constructivism as broadly explanatory of the ACHPR phenomenon 287 7.7 Hypothesizing the measure of IHI effectiveness 293

8

Conclusion

296

Select Bibliography Index

323

302

ix

ACKNOWLEDGEMENTS

I am deeply grateful to a great number of persons and institutions for their support during the long years it took to undertake the study, and prepare this book. While it is impossible to name all of these persons and institutions here, it is important to try. First of all, I would like to thank Atugonza (my jewel of inestimable value), Ojiako (my wonderful son), Mbabazi (my amazing daughter), my late father Ichie F. Okwu-Okafor, Lechi (my exceptional mother), and the rest of my extended family (especially Ogo, Okey, Ada, Ojiugo, Chi-Chi, and Chike), whose understanding, sacrifice, and support has been my greatest source of strength. Secondly, I would like to thank the Social Science Research Council of New York (SSRC) for its grant to me in 1998 of the SSRC-MacArthur Foundation Fellowship that financed my field and library research. The financial assistance provided by the Social Science and Humanities Research Council of Canada, Osgoode Hall Law School of York University, and Carleton University must also be gratefully acknowledged. Thirdly, Upendra Baxi and Makau Mutua deserve a most special mention here for their intellectual support of my human rights scholarship. To my human rights teachers at the University of Nigeria, especially Professors Kofi Quashigah and Obinna Okere, I am similarly grateful. I would also like to thank University of British Columbia Professors Ivan Head (of blessed memory), Karin Mickelson, Wes Pue, and Joel Bakan for their mentorship all these years; and Osgoode Hall Law School Professors Susan Drummond, Allan Hutchinson, Shelley Gavigan, Iain Ramsay, Craig Scott, Robert Wai, Toni Williams, for their intellectual support. Chantal Morton of Osgoode Hall Law School also deserves mention here for her constant encouragement. Deans Peter Hogg and Patrick Monahan of Osgoode Hall Law School equally deserve mention here for the many conference and small research grants to me that helped to bring this project to a conclusion. Fourthly, my colleague Solomon Ukhuegbe deserves very special thanks for his painstaking, critical, and helpful review of several chapters x

ACKNOWLEDGEMENTS

xi

of the book. I would also like to thank R. A. C. E. Achara, Obijiofor Aginam, Antony Anghie, Joy Ezeilo, James Gathii, Pablo Idahosa, Sylvia Kanga’ra, Ikechi Mgbeoji, Vincent Nmehielle, Joel Ngugi, George Nnona, C. C. Nweze, Paul Ocheje, Balakrishnan Rajagopal, and Hani Sayed for conversations over the years that have affected the content and orientation of this book. Fifthly, I am grateful to the Human Rights Program at Harvard Law School for the opportunity to spend a total of nine months as a visiting scholar in the program. Much of the research and writing of this book was done during my tenure there. Since various parts of this book were presented over the years at a number of different conferences and seminars around the world, I must express my gratitude to the participants at those meetings. Participants at the 1998 San Salvador Fellow’s Conference of the SSRC (especially Charles Hale, Kathryn Sikkink, Tandeka Nkiwane, and Rob Walker) deserve much gratitude for their helpful comments on my research proposal. I am also grateful to the participants at the 2000 Cape Town Conference on Post-Conflict Peacebuilding organized by the SSRC (especially Gilbert Khadiagala, David Monyae, and Ben Rawlence) for their helpful comments on my presentation of very early drafts of chapters two, three, and four of this book. Similarly, I am also grateful to the participants at the Harvard Law School’s Human Rights Program’s Fellows’ Seminar held in August 2001 (especially Sam Amadi, Mike Ikhariale, Naina Kapur, Zachary Lomo, Peter Rosenblum, Henry Steiner, and Yosuke Yotoriyama) for their helpful comments on my presentation of the major ideas contained in this book. Sixthly, I want to thank Adila Abusharaf, Amandi Esonwanne, Shedrack Agbakwa, Chinedu Idike, Rhoda Kargbo, Tony Ceaser Okeke, Pius Okoronkwo, Richelle Samuel, Helen Tewolde, and many others for their research assistance, in some cases over several years. Parts of the book benefited significantly from Chinedu Idike’s research memoranda on national human rights institutions in Africa. The evidence discussed in chapter five was collected in large measure with the research assistance of Simon Okolo Benneth. My friends and colleagues, Obiora Anozie, Boniface Ahunwan, Okey Ajunwa, Bukhari Bello, Basil Enwegbara, Uche Gwam, Virtus Igbokwe, Ilwad Jama, Paul Krumeh, Sam Nwatu, Osasu Obayiuwana, Paul Ocheje, Chidi Oguamanam, Ugochukwu Okezie, Johnson Sebeni, Pierre Sob, Ugochukwu Ukpabi, and Bibhas Vaze have also been a constant and valued source of encouragement and support. I am most grateful to them.

xii

ACKNOWLEDGEMENTS

Last but by no means the least of those who I would like to acknowledge are the staff at Cambridge University Press, especially Finola O’Sullivan, the law publisher at the press, for her dedication to this project, support through the process, and excellent editorial guidance. The anonymous reviewers of the manuscript also deserve my thanks. Thank you one, thank you all!

ABBREVIATIONS

ACHPR ACHPR/RPT ADNs African Charter African Commission ASICL Proceedings ASIL Proceedings AU BCLR CGE CHRLD CILSA CLC CLO CPR CRC CRP CSA DOJ ESC FHC GLR HURILAWS HURISA ICCPR

African Charter on Human and Peoples’ Rights Annual Reports of the African Commission on Human and Peoples’ Rights advocacy networks African Charter on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights Proceedings of the African Society of International and Comparative Law Proceedings of the American Society of International Law African Union Butterworths Constitutional Law Reports Commission on Gender Equality (South Africa) Commonwealth Human Rights Law Digest Constitutional and International Law Journal of Southern Africa Community Law Centre Civil Liberties Organization civil and political rights UN Convention on the Rights of the Child Constitutional Rights Project civil society actor Department of Justice and Constitutional Development economic, social, and cultural rights Federal High Court Ghana Law Reports Human Rights Law Service Human Rights Institute of South Africa International Covenant on Civil and Political Rights xiii

xiv

ICJ IHI ILM ILR INTERIGHTS JCA JJCA JJSC JSC KNCHR LRC MRA NADECO NASS NCOP NGOs NNHC NUPENG NWLR OAU PINs RPT SACLR SACLR LEXIS SAHRC SALC SERAC SRI SSS TANs UDH UN

LIST OF ABBREVIATIONS

International Commission of Jurists International Human Rights Institutions International Legal Materials International Law Reports International Centre for the Legal Protection of Human Rights Justice of the Court of Appeal Justices of the Court of Appeal Justices of the Supreme Court Justice of the Supreme Court Kenyan National Commission on Human Rights Legal Resources Centre Media Rights Agenda National Democratic Coalition National Assembly (South Africa) National Council of the Provinces (South Africa) Human Rights Non-Governmental Organizations Nigerian National Human Rights Commission National Union of Petroleum and Gas Workers Nigerian Weekly Law Reports Organization of African Unity principled issue networks Report South African Constitutional Law Reports South African Constitutional Law Reports LEXIS South African Human Rights Commission South African Law Commission Social and Economic Rights Action Center Shelter Rights Initiative State Security Service (Nigeria) Transnational Advocacy Networks Universal Declaration of Human Rights United Nations

1 The African human rights system, activist forces, and international institutions: an introduction

Aside from their weak attempts at commanding obedience and their very modest successes at cajoling compliance, are there other significant ways in which international human rights institutions (IHIs), such as the African human rights system,1 can matter to those who wage domestic social struggles? Aside from doing something for the local activist forces that wage such struggles, can such activist forces do meaningful things with the African system in their engagement with the domestic institutions of their own countries? Can these activist forces, as local actors and agents, more effectively deploy and harness within states the norms, processes, and creative spaces that have been made available to them partly as a result of the character and behaviour of the African system? Can they by so doing facilitate a creative form and process of ‘‘trans-judicial communication’’ between the African system and such other IHIs (on the one hand) and the key domestic institutions (on the other hand)? In short, what precisely, if at all, is the extent of the domestic impact of the African system; how exactly has such domestic impact been achieved; and what does the manner in which it has been achieved tell us about the ways in which we imagine and evaluate IHIs like the African system? A number of concepts are central to the questions raised above: the African human rights system, activist forces, IHIs, and trans-judicial communication. These require definition. Although it is in one sense possible to speak of the existence of African human rights systems, and despite the fact that specialized human rights systems such as those established under the African children’s rights and refugees’ rights conventions do exist,2 as used in this book, the expression the ‘‘African human rights system’’ refers to the main, more general, human rights 1 2

Hereinafter referred to as the ‘‘African system.’’ See the African Charter on the Rights and Welfare of the Child, 1990, available at www.achpr.org/english/_info/child_en.html (visited 12 March 2006); and the OAU

1

2

THE AFRICAN HUMAN RIGHTS SYSTEM

system which is operational on the continent, and which was established by the African Charter on Human and Peoples’ Rights in 1981 and physically set up in 1987.3 This more general African system consists in the main of the African Charter, the African Commission on Human and Peoples’ Rights (hereinafter the ‘‘African Commission’’ or the ‘‘Commission’’), the new Protocol on the Rights of Women in Africa, and the new African Court of Human and Peoples’ Rights (hereinafter the ‘‘Court’’).4 As such, references in this book to the system includes reference to the African Charter (the treaty on which the system is founded and which iterates the system’s goals and norms), to its Protocols (on the establishment of a Court and on women’s rights), and to the African Commission (which was established by that treaty, inter alia, to monitor the observance of states with its provisions). As I use it here, the expression ‘‘activist forces’’ refers to the activist judges and civil society actors (CSAs) who openly challenged and challenge aspects of dictatorial rule and continue to fight to ameliorate human rights violations in countries like Nigeria, South Africa, Togo, Benin, Ghana, Namibia that are discussed in chapters 4 to 6. While these groups are described in this book as activist because they tend to possess this ‘‘resistance character,’’ it is worthwhile to note, even at the outset, that the activist orientation of any of these actors does not settle the question of the nature of its political ideology. While most of these activist forces will be considered by most observers as progressive rather than regressive elements, this cannot always be said for every such actor. To be clear, reference to CSAs in this book (as a sub-group of activist forces) are meant to include one or more of the following: self-professed human rights CSAs, activist lawyers, women’s groups, faith-based groups, trade unionists, university students, pro-democracy campaigners, radical or dissident politicians (such as those who operated in Nigeria under the umbrella of the National Democratic Coalition (NADECO)), professional groups (such as the Nigerian Bar Association and the

3

4

Convention governing the Specific Aspects of Refugee Rights in Africa, 1969, available at www.achpr.org/english/_info/refugee_en.html. See the African Charter on Human and Peoples’ Rights, 1981 (1982) 21 ILM 59 (hereinafter the ‘‘African Charter’’ or the ‘‘Charter’’). For the Women’s Rights Protocol, see the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003, available at www.achpr.org/ english/_info/women_en.html. For the African Court, see the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998, available at www.dfa.gov.za/for-relations/multilateral/ treaties/court.htm.

INTRODUCTION

3

Nigerian Medical Association), independent journalists, and other such actors. In the sense in which I use it in this book, the term ‘‘IHI’’ encompasses both international human rights regimes and the bodies and mechanisms that monitor actors’ adhesion to regime norms and goals. Since both the regime and the monitoring bodies would normally operate in an integrated manner, this makes sense in a book such as this. While the exact legal status of these institutions remains unclear, there is little doubt that whatever else they are, they are also specialized political institutions. In many cases, they also function in the nature of quasijudicial bodies without being formally styled as such. IHIs set and interpret international human rights standards and thus seek to produce international human rights meaning. Examples of such institutions include the Human Rights Committee established by article 28 of the International Covenant on Civil and Political Rights;5 the Committee Against Torture established by article 17 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment;6 and the African Commission on Human and Peoples’ Rights established under article 30 of the African Charter. To be clear, I must state the fact that I use the concept of IHIs in a broader sense than it was used in the leading international human rights textbook written by Steiner and Alston.7 As I use the expression here, ‘‘trans-judicial communication’’ refers to the brokered transnational transmission of norms, ideas, or knowledge between the African system (which in reality functions in a kind of quasi-judicial mode) and the key domestic institutions of some states parties to that system. This transmission of norms has been brokered and facilitated by the activist forces, especially human rights CSAs which operate within these states. I am, of course, aware that Anne-Marie Slaughter has used this expression in a somewhat different sense.8 The first of the two overarching objectives of this book is to show that, with or without fostering direct state compliance, the African system can (under certain identifiable conditions) achieve domestic impact by affecting significantly the thinking processes and action of the key domestic 5 7

8

See (1967) 6 ILM 368. 6 See (1984) 23 ILM 1027. See H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals (New York, Oxford University Press, 2000), p. 771. See A. Slaughter, ‘‘A Typology of Transjudicial Communication’’ (1995) 29 University of Richmond Law Review 99.

4

THE AFRICAN HUMAN RIGHTS SYSTEM

institutions of certain African states, thereby fostering ‘‘correspondence’’ between the African system’s norms and the thinking/behaviour of these sub-national institutions. It will be shown that this possibility (what I will refer to in this book as the ‘‘ACHPR (African Charter on Human and Peoples’ Rights) phenomenon’’) is best realized when local activist forces, especially CSAs, lead a process of trans-judicial communication that involves the creation of a virtual human rights network among the African system and these activist forces, as well as the deployment by these activist forces of the norms and/or processes of the African system within key domestic institutions, such as the judiciary, the legislature, and the executive, in ways that can often enable previously unavailable arguments to become available and acquire even more persuasive power; increase the success rate of these arguments; and facilitate alterations in the logics of appropriateness, conceptions of interest, and self-understandings that had hitherto prevailed within the relevant domestic institutions. As these activist forces tend to act as ‘‘norm entrepreneurs,’’9 tend to make detailed ends-means calculations,10 and tend to deal more in the currency of ideas, knowledge, and norms, than in more material factors, a quasiconstructivist (and therefore constructivist) explanation seems entailed.11 Thus, in developing this argument, key elements of the broadly constructivist approach to the study of IHI effectiveness will be pressed into service. Constructivism is rich in understandings and explanations of the processes through which the self-understandings, logics of appropriateness, and conceptions of interest held within key domestic institutions can be shaped or re-shaped in the process of interacting with IHIs and other kinds of international institutions. The work of quasi-constructivists is particularly important in this respect. A consequential and second objective of the book is to argue for a modest extension of the measure by which the effectiveness of the African system (and other similar IHIs) has hitherto been assessed. This modest extension is necessary because the currently dominant measure of IHI effectiveness has tended to focus almost entirely on observing and analyzing the capacity of the African system (and other such IHIs) to command, cajole, or attract state compliance.12 As a result, 9

10 11

12

See M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’’ (1998) 52 International Organisation 887 at 895. Ibid. The nature of both ‘‘constructivism’’ and ‘‘quasi-constructivism’’ will be discussed in detail in chapter 2. This concept is explained in detail in chapter 2.

INTRODUCTION

5

while it has been of great utility in measuring state compliance with IHI decisions, the conventional measure of IHI effectiveness has all-toooften been unable to capture the occurrence of correspondence and therefore of the possibility of the ACHPR phenomenon. To be clear, however, the objective of the book is not to dismiss or treat with contempt the measurement of state compliance as a form of inquiry into the value of IHIs. Rather it is to extend the frontiers of that measure and deepen that barometer. In the end, what is suggested in this book is that scholars reach beyond (without abandoning) the state compliance optic.13 As importantly, the reader should keep in mind the fact that the book is not really a doctrinal study of the jurisprudence of either the African system or any of the relevant domestic courts in Africa. The analysis of the case law that is provided here is merely aimed at supporting the focus of the book on how the cases show the capacity of activist forces to deploy creatively the African system within states. Similarly, the book is also not a treatise on the procedures and processes of the African system. The literature is now so well endowed in that regard that it needs little addition. In consonance with the book’s objectives, the author has gathered relevant evidence from Nigeria, South Africa, and a number of other African countries in order to ground the broader effort that is undertaken in the book to map more accurately the domestic impact of the African system (and thereafter to examine its implications for our evaluation and understanding of IHIs). Although relevant evidence from a number of other African countries was gathered, the bulk of the more high quality evidence happens to be Nigerian and, to a lesser extent, South African. Given the fact that Nigerian civil society groups have been acknowledged by many discerning observers to be one of the two most dynamic on the African continent;14 given the fact that over 20 percent of the population of that entire fifty-four-country continent 13

14

For a sophisticated version of the compliance-centered approach, see O. A. Hathaway, ‘‘Do Human Rights Treaties Make a Difference?’’ (2002) 111 Yale Law Journal 1935. For a critique of her study, one that hints at the kind of expanded optic that the book will argue in favour of, see R. Goodman and D. Jinks, ‘‘Measuring the Effects of Human Rights Treaties’’ (2003) 14 European Journal of International Law 171. Hathaway’s reply to Goodman and Jinks is published in the same volume. See O. A. Hathaway, ‘‘Testing Conventional Wisdom’’ (2003) 14 European Journal of International Law 185. For instance, see T. Shaw, ‘‘Africa in the New World Order: Marginal and/or Central?’’ in A. Adedeji (ed.), Africa within the World (London, Zed Books, 1993), pp. 91–92.

6

THE AFRICAN HUMAN RIGHTS SYSTEM

lives in Nigeria,15 and given the fact that its population is, in relative terms, among the most highly educated in Africa,16 the concentration of the evidence in Nigeria is perhaps not as surprising and problematic as it could be. What is more, Nigeria’s notoriety during most of the relevant period (that is, from 1987 to the early 2000s) as a state which was captured, governed, and dominated by dictatorial forces;17 its status during the relevant period as one of the most powerful and endowed African states;18 the fact that complaints originating from Nigeria constituted the single most numerous chunk of complaints that came before the African Commission during the relevant period;19 and Nigeria’s status as an original party to the African Charter and consistent participant in the work of the African Commission, are all factors that helped produce this situation. Overall, given the fact that Nigeria constitutes only about 2 percent of the number of states parties to the African system but has generated about 17 percent of all the cases brought before the African Commission, it is fair to conclude that should the system be shown to have promise in Nigeria, that would be a very significant development in a direct sense for 20 percent of Africans (Nigeria’s share of Africa’s population). What is more, in an indirect sense, it would be 15

16

17

18

19

See www.country-data.com/cgi-bin/query/r-9371.html (noting that Nigeria’s population is about twice the size of that of the next largest country in Africa, Egypt, which had an estimated mid-1989 population of 52 million; Nigeria represents about 20 percent of the total population of black Africa). This is corroborated by a review of the UN Economic Commission for Africa’s website. See www.uneca.org/aisi/nici/ country_profiles/Nigeria/nigeriab.htm. UNDP statistics indicate that Nigeria has a youth literacy rate of about 87 percent and an adult literacy rate of about 65 percent. See http://hdr.undp.org/reports/global/2003/ indicator/cty_f_NGA.html. Nigeria also has over forty-five universities and hundreds of institutions of tertiary education. See A. Olutokun, ‘‘Authoritarian State, Crisis of Democratization and the Underground Media in Nigeria’’ (2002) 101 African Affairs 317 at 317–318. I. Mgbeoji, Collective Insecurity: The Liberian Crisis, Unilateralism, and Global Order (Vancouver, University of British Columbia Press, 2003), p. 42. Just for instance, an analysis of the cases which were dealt with by the African Commission in the five year period between 1994–1999 (some of its most active years) reveals that 17 of the total number of 107 cases were brought against Nigeria (just under 17 percent of the total number of cases). Yet, Nigeria is only one of fiftythree states parties to the African Charter, and therefore it is just one of fifty-three states actors within the African system (that is, it is only 2 percent or so of the total membership of the African system). This is a highly disproportionate relationship that is only tempered by the fact that the 17 percent of the cases that are attributable to Nigeria almost match Nigeria’s share of Africa’s total population, which is about 20 percent. In any case, the point is that Nigeria has, during the relevant period at least, been the single most important state actor within the African system.

INTRODUCTION

7

a significant development for the African system itself (since Nigerian matters take up 17 percent of its time, effort and resources!). As such, it will, in an indirect way, also be a significant (though not absolutely definitive) development for most African states. Similarly, given South Africa’s giant stature in Africa (especially its large population of about 48 million, its status as by far Africa’s richest country and strongest economy, and its extremely strong support for and participation in the African system), it will also be significant if the African system were to be found to have had an appreciable degree of impact within that country. However, as we shall see, because South Africa’s CSAs have not engaged as much with the African system as their Nigerian peers, and for other such reasons, even the appreciable South African evidence that exists is not as profound or even bountiful as that from Nigeria. As relatively important is the fact that some direct evidence from a number of other countries regarding the domestic impact of the African system does exist and is reported and analyzed in chapter 6. An interdisciplinary combination of legal and other social science techniques, including detailed field work in Nigeria and South Africa – the two most promising and most important sites – were utilized. The concentration of the detailed field work on these two locations was because preliminary purposive inquiries did not reveal the existence of much evidence elsewhere that could not be obtained via textual searches. As such, the huge expenditure that would have been involved in traveling to the other African countries could not be justified. As such, the general methodology adopted was purposive, and not random, sampling. The evidence was systematically sought wherever it could be found. The study sought to demonstrate the arguments made in this book by collecting, examining, and analyzing the available evidence concerning the influence of the African system within Nigeria, South Africa, and certain other African states (that is, the system’s influence on domestic courts, executive action and policy-making, and legislation in these countries, as well as its influence as a crucial resource in the hands of CSAs in the relevant African states). The first kind of influence was observed in the decisions of the courts and in the arguments and briefs of counsel, as well as by interviewing domestic counsel and judges. The second was observed by analysing the relevant governmental policies and laws, all in their various historical contexts. The third kind of influence was observed by analyzing domestic legislation, relevant Hansards, other relevant documents, and the texts of the decisions and

8

THE AFRICAN HUMAN RIGHTS SYSTEM

resolutions that emanate from within the African system, as well as by analyzing the documents that reveal the social context of the legislation and governmental reactions to criticisms of such legislation. Relevant legislators and policy-makers were also interviewed informally when necessary. In all these cases, further evidence was obtained by interviewing, observing, or collecting evidence about CSA activists and other activist forces, as well as by analyzing their annual activity reports, the decisions, and the text and context of the decisions that have emanated from the African system. Whenever relevant and necessary, textual analysis of quasi-judicial decisions, resolutions, activity reports, and other related documents that have emanated from the African system was done. The African Charter and its Protocols were also analyzed when relevant and necessary. All of the textual analysis was done by purposefully seeking, collecting, and analyzing every one of such documents that was viewed as relevant. This was so because of the need to capture as much as possible the entirety of the picture of the work of the various bodies being studied. The interviewees were also selected through such purposeful sampling. Given the need to capture as much data as is available, and given the relative scarcity of the data, the purposeful method for collecting the evidence and determining samples was preferred in this specific case as the use of the random sampling method would have likely led the study to concentrate on sites in which little or no relevant data existed or on persons from whom little, if any, evidence could be extracted. Given very scarce resources and the need for efficient work methods, that kind of negative result post resource expenditure was better avoided than encountered. As importantly, the book’s focus on the African system (as opposed to, say, the European system) is informed in part by the fact that that institution has faced, and continues to face, far more obstacles to its success than most other similar bodies. Another good reason for its selection is that the African system is, almost without exception, portrayed in the literature as the weakest and most ineffective of these international bodies.20 Thus, a mapping of its promise has more of a potential to provide a valuable guide for the more accurate assessment of those IHIs which are already viewed as much more effective. The converse will likely not be true. What is more, in comparison with both the

20

For example, see C. E. Welch, ‘‘The African Commission on Human and Peoples’ Rights: A Five-Year Report and Assessment’’ (1992) 14 Human Rights Quarterly 43.

INTRODUCTION

9

UN system and its regional counterparts, the African system has been under-studied. The book has benefited tremendously from the existing legal and social science literature, particularly those elements of it that have addressed the broad issue of the effectiveness of IHIs and other kinds of international institutions.21 In this connection, the work of constructivists has been particularly helpful.22 Even more helpful have been the insights developed by their quasi-constructivist siblings such as Kathryn Sikkink, Martha Finnemore, and Margaret Keck.23 The work of these scholars on the processes via which certain ideas, norms, and IHIs can penetrate state borders and exert domestic influence has helped shape the arguments that are offered in this book. The book has also been much enriched by the work of scholars of the African human rights system, such as Rachel Murray, Malcolm Evans, Claude Welch, Makau Mutua, Joe Oloka-Onyango, Chidi Odinkalu, Shadrack Gutto, Evelyn Ankumah, Vincent Nmehielle, George Mugwanya, and Nsongurua

21

22

23

For example, see O. Young, ‘‘Political Leadership and Regime Formation: On the Development of Institutions in International Society’’ (1991) 45 International Organisation 281; T. M. Franck, The Power of Legitimacy Amongst Nations (New York, Oxford University Press, 1990); A. Chayes and A. H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Mass., Harvard University Press, 1995); O. Schachter, International Law in Theory and Practice (Dordrecht, M. Nijhoff, 1991); J. A. Caporaso, ‘‘International Relations Theory and Multilateralism: The Search for Foundations’’ (1992) 46 International Organisation 599; S. Krasner, ‘‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’’ (1982) 36 International Organisation 185; J. J. Mearsheimer, ‘‘The False Promise of International Institutions’’ (1994/95) 19 International Security 5; D. Kennedy, ‘‘The Move to Institutions’’ (1987) 8 Cardozo Law Review 841; G. Alfredsson and D. Turk, ‘‘International Mechanisms for the Monitoring and Protection of Minority Rights: Their Advantages, Disadvantages and Interrelationships’’ in A. Bloed et al. (eds.), Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms (Dordrecht, Martinus Nijhoff, 1993), p. 169; and M. Mutua, ‘‘Looking Past the Human Rights Committee: An Argument for Demarginalizing Enforcement’’ (1998) 4 Buffalo Human Rights Law Review 211. For example, see E. B. Haas, ‘‘Why Collaborate? Issue Linkage and International Relations’’ (1979–80) 32 World Politics 357; J. G. Ruggie, ‘‘Peace in Our Time? Causality, Social Facts and Narrative Knowing’’ (1995) ASIL Proceedings 93; J. G. Ruggie, ‘‘Multilateralism: The Anatomy of an Institution’’ (1992) 46 International Organisation 561; and J. Brunnee and S. J. Toope, ‘‘International Law and Constructivism: Elements of an Interactional Theory of International Law’’ (2000) 39 Columbia Journal of Transnational Law 1. For example, see Finnemore and Sikkink, supra note 9; and K. Sikkink and M. Keck, Activists without Borders (Ithaca, Cornell University Press, 1998).

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Ndombana.24 Although the focus of this book does differ from almost all of these writings, without the many insights gained from them, this book could not have been written. The sequence of analysis in the book will proceed as follows. First, chapter 2 maps and assesses the conventional ways of evaluating the effectiveness of IHIs. Thereafter, the conventional conceptions of the African system that are present in the specific literature on that system are discussed in chapter 3. Following this exercise, an attempt is made in chapter 4 to offer key evidence which supports the proposition that the African system has had appreciable, if modest, impact within Nigeria. The factors that have either facilitated or impeded the ability of the African system to achieve influence within Nigeria are also discussed. In chapter 5, the nature, extent, and limits of the impact that the African system has had within South Africa is analyzed. And just like in chapter 4, the factors that have either facilitated or impeded the capacity of the African system to produce such correspondence are also identified and discussed. In chapter 6, an attempt is made to offer more modest (though still significant) evidence suggesting that the African system may possess similar, if less, domestic promise in certain other African states. In the end, an attempt is made to isolate and specify the minimum conditions for the optimization of the domestic impact of the African system. In chapter 7, key insights from the theoretical discussion in 24

See R. Murray, Human Rights in Africa: From the OAU to the AU (Cambridge, Cambridge University Press, 2004); R. Murray, The African Commission on Human and Peoples’ Rights and International Law (Oxford, Hart Publishing, 2000); M. Evans and R. Murray (eds.), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge, Cambridge University Press, 2002); M. Mutua, ‘‘The African Human Rights Court: A Two-Legged Stool?’’ (1999) 21 Human Rights Quarterly 342; M. Mutua, ‘‘The African Human Rights System in a Comparative Perspective’’ (1993) 3 Review of the African Commission on Human and Peoples’ Rights 5; C. E. Welch, ‘‘The African Commission on Human and Peoples Rights: A Five Year Report and Assessment’’ (1992) 14 Human Rights Quarterly 43J; J. Oloka-Onyango, ‘‘Reinforcing Marginalized Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for Peoples’ Rights in Africa’’ (2003) 18 American University International Law Review 851; S. B. Gutto, Human and Peoples’ Rights for the Oppressed (Lund, Lund University Press, 1993); C. A. Odinkalu, ‘‘The Individual Complaints Procedure of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’’ (1998) 8 Transnational Law and Contemporary Problems 359; E. A. Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedures (The Hague, Martinus Nijhoff, 1996); V. O. Nmehielle, The African Human Rights System (The Hague, Kluwer Law International, 2002); G. Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System (Ardsley, NY, Transnational, 2003).

INTRODUCTION

11

chapter 2 are applied to the data/analysis that was presented in chapters 4, 5, and 6 in order to offer a quasi-constructivist explanation of the ACHPR phenomenon and the correspondence that is produced in consequence. A more general analytical case is also made in favour of a modest extension of the measure of IHI effectiveness so as to accommodate more readily the other ways in which such IHIs can exert influence within states – an argument that is steeped in the broad constructivist idiom. In line with the findings from the case study of the African system, six minimum conditions for the optimization of the domestic impact of other similarly situated IHIs are hypothesized. This broader hypothesis on assessing the domestic impact of IHIs is not offered as a general theory, but as a highly informed guide to the systematic study of other IHIs. This book does not therefore offer a general theory of the effectiveness of all IHIs. Many more studies of many more IHIs need to be done before such a general theory can be offered. This book is merely an attempt to map the domestic impact of one such IHI – that is, the African system – from the vantage point of an analysis of how a set of expanded scholarly lenses can reveal hitherto uncaptured evidence of such an IHI’s domestic utility. As such, the discussion in chapter 7 is oriented toward pointing convincingly to an enhanced conceptual apparatus. It is hoped, however, that the book will at least add some useful insights to the debate about the ways in which IHIs can exert influence within states.

2 Conventional conceptions of international human rights institutions

2.1 Introduction As already explained in chapter 1, a key objective of the book is to demonstrate the proposition that the African system has manifested its most significant domestic promise when it has been creatively deployed by activist forces in the domestic social struggles that they often wage within certain African states. When the African system is so deployed, it can help shape the self-understandings and conceptions of interest held within key domestic institutions of target states, thereby contributing to the generation of valuable forms of ‘‘correspondence’’ between the goals of the African system (on the one hand) and the behaviour of the relevant domestic institutions (on the other hand). The other key objective of the book is to demonstrate the need for a modest expansion in the range and depth of the conventional optics through which the value/effectiveness of the African system (and similar IHIs) have hitherto been evaluated. There is a need, it will be urged, to reach beyond, without abandoning, the search for state compliance as the measure of the utility of the African system and other such bodies. However, before the evidence that tends to indicate this touted domestic promise of the African system can be fruitfully discussed, it is necessary to offer a general discussion of the nature and relevance of those conventional conceptions of IHIs that are viewed in this book as more or less limited. This will be the focus of the present chapter (which discusses the conventional conceptions of IHIs more generally). It will also form the main subject of discussion in the next chapter (which focuses specifically on the nature of the conventional conceptions of the African system). As a prelude to the more direct consideration, in the present chapter, of the IHI literature, I will discuss the ways in which international institutions more generally have been imagined and represented in the literature. This tour d’horizon will of necessity be interdisciplinary. Here, my central 12

CONVENTIONAL CONCEPTIONS OF IHIs

13

concern will be to map the relevant bodies of literature, seeking to develop an appreciation of the major problems which inhibit the attempts by the various ‘‘schools of thought’’1 that constitute this literature to explain more adequately the behaviour of IHIs. The central problematic that these ‘‘schools’’ have grappled with for a long time is whether and why IHIs matter to real people, or have autonomous worth of some significance. To this end, I have organized this chapter into four sections, the present one included. In section 2.2, I will discuss the conventional conceptions of international institutions more generally. While much of that discussion will not be novel, it is crucial nevertheless for the systematic and proper development of the theses advanced in this book. The questions that inform my accounts of the conventional approaches to the study of IHIs are: how have realist, neo-realist, neo-liberal, liberal, constructivist, and certain eclectic approaches to international institutions imagined those entities? To what extent have the analytical optics preferred by each of these ‘‘schools’’ been overly state-centered, rationalist, positivist, enforcement-centric, compliance-centric, and non-holistic – and thus almost exclusively focused on the capacity of IHIs to coerce or cajole state compliance? Have any of these schools explained adequately the consequences (as opposed to the formation or sustenance) of these institutions, especially their effect within state institutions (as opposed to their effect on state behaviour on the international plane)? To what extent, do these ‘‘schools’’ focus adequately on the ways in which domestic (as opposed to trans-national or international) activist forces have creatively and effectively deployed these institutions (as resources) within domestic institutions? To what extent have these schools focused on the implications that the occurrence of such behaviour may have for the adequacy of their own analytical frameworks? In section 2.3, I focus more specifically on those parts of the literature that have trained their lenses directly on IHIs. Here, the questions that inform my understanding of the conventional conceptions of IHIs are very similar to the ones asked in section 2.2. Section 2.4 concludes the chapter. There, I summarize the major arguments presented in the chapter and link them to the overall objectives of the book. It is important to note at the outset, as I will note elsewhere in this chapter, that much as I must point out the relevant differences among 1

It is important to emphasize once again that, like Hasenclever et al., I use the expression ‘‘schools of thought’’ as ‘‘intellectual, not sociological, entities.’’ It refers to ‘‘ideas . . . rather than people.’’ See Hasenclever et al., infra note 11, at 6.

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the various ‘‘schools,’’ I do so fully aware that these ‘‘schools’’ are not at all housed in watertight compartments. They all share certain things in common. Thus, much care will be exercised in order not to create the contrary impression. Points of departure do, however, exist and will be noted here. Again, as importantly, the primary purpose of the discussion in this chapter is not to present the author’s own theoretical approach. It is to map the pre-existing scholarly scene, with respect to the study of IHIs. The objective of this mapping exercise is to present the alternative approaches to the study of IHIs, so as to lay the groundwork for the subsequent identification elsewhere in the book of the approach or approaches that are most useful in interpreting the data discussed in chapters 4, 5, and 6. The author’s theoretical contribution is systematically teased out as the book progresses, and is outlined more pithily in chapter 7.

2.2 Conventional conceptions of international institutions in general Conventional analyses of the nature and relevance of international institutions may be organized in a number of different ways. In a now famous and widely cited paper, Robert Keohane organized these analyses into two major strands, the one rationalist and the other reflective or cognitive.2 In his view, though realism and neo-realism are the most avowedly rationalist of all the ‘‘schools’’ which constitute the two strands of analysis, neo-liberalism and liberalism also subscribe to the rationalist approach. Despite their internal differences, rationalists share a commitment to the conceptualization of international institutions and foreign policies as outcomes of calculations of advantage made by states.3 They tend to be sceptical of reflectivist approaches (which emphasize the role of ideas, norms, and knowledge), charging that while norms, ideas, and knowledge can each play a role in international cooperation, and thus in understanding the nature and behaviour of international institutions, international cooperation can be explained without reference to 2

3

See R. O. Keohane, ‘‘International Institutions: Two Approaches’’ (1988) 32 International Studies Quarterly 379 at 381. For another use of this same typology, see M. Barnett, ‘‘Institutions, Roles, and Disorder: The Case of the Arab States System’’ (1993) 37 International Studies Quarterly 271 at 273–275. See A. Hasenclever, P. Mayer, and V. Rittberger, Theories of International Regimes (Cambridge, Cambridge University Press, 1997), p. 23.

CONVENTIONAL CONCEPTIONS OF IHIs

15

such constructs.4 The reflective (or critical) approaches include the various strands of cognitivism: such as the work of constructivists like Ernst Haas, Peter Haas, Martha Finnemore, John Gerard Ruggie, Frederich Kratochwil, and Alexander Wendt5; the work of postmodernists such as R. B. J. Walker and Richard Ashley;6 the work of feminists such as Peterson, Mazey, and Sylvester;7 and the work of neo-marxians such as Cox and Gill.8 Despite their many differences, these reflective approaches share a commitment to a stress on ideas, norms, and knowledge, as explanatory factors.9 They are critical of rationalist approaches that they view as tending to ignore, or at best trivialize, the role of norms, ideas, and knowledge in the production of the identities or self-understandings, and interests or preferences, of states; phenomena that rationalists treat as non-theorized ‘‘initial conditions.’’10 In the view of reflectivist scholars, such identities and interests are not ‘‘exogenously given.’’11 While largely supportable, this rationalist/reflectivist typology may still be too broad for the purposes of this chapter, and the rest of the book. Other typologies are in fact possible. For instance, Hasenclever, 4 5

6

7

8

9 11

See Keohane, supra note 2, at 380. See E. B. Haas, ‘‘Words Can Hurt You; or, Who Said What to Whom About Regimes’’ (1982) 36 International Organisation 207; J. G. Ruggie, ‘‘Global_Governance.net: The Global Compact as Learning Network’’ (2001) 7 Global Governance 371; J. G. Ruggie, ‘‘International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order’’ (1982) 36 International Organisation 379; P. M. Haas, ‘‘UN Conferences and Constructivist Governance of the Environment’’ (2002) 8 Global Governance 73; P. M. Hass, ‘‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’’ (1989) 43 International Organisation 377. A. Wendt, ‘‘Constructing International Politics’’ (1995) 20 International Security 71. See R. Ashley, ‘‘The Poverty of Neorealism’’ (1984) 38 International Organisation 225, and R. B. J. Walker, Inside/Outside: International Relations as Political Theory (Cambridge, Cambridge University Press, 1993). See V. S. Peterson, ‘‘Rereading the Public and Private: The Dichotomy that is not One’’ (2000) SAIS Review 11; S. Mazey, ‘‘The European Union and Women’s Rights: From the Europeanization of National Agendas to the Nationalization of a European Agenda’’ (1998) 5 Journal of European Public Policy 131; and C. Sylvester, ‘‘Empathetic Cooperation: A Feminist Method for IR’’ (1994) 23 Millenuim 315. See R. W. Cox, ‘‘Gramsci, Hegemony, and International Relations: An Essay in Method’’ (1983) 12 Millennium 162; R. W. Cox, ‘‘Civil Society at the Turn of the Millennium: Prospects for an Alternative World Order’’ (1999) 25 Review of International Studies 3; R. W. Cox, ‘‘The Crisis in World Order and the Challenge to International Organisation’’ (1994) 29 Cooperation and Conflict 99; and S. Gill, ‘‘Reflections on Global Order and Socio-Historical Time’’ (1991) 16 Alternatives 275. See Hasenclever et al., supra note 3, at 136. 10 Ibid. A. Hasenclever et al., ‘‘Integrating Theories of International Regimes’’ (2000) 26:1 Review of International Studies 3 at 5.

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Mayer, and Rittberger have adopted a different typology, classifying these conventional analyses into realist, neo-liberal, and cognitivist approaches. They have also described these three ‘‘schools’’ in terms of power-based, interest-based, and knowledge-based approaches to the study of international institutions. Since an understanding of the theses advanced by these more specific schools of thought is central to the consideration of the IHI theory which is a central aspect of this book’s raison d’etre, it is important at the outset to devote some space to the explication of the central tenets of each of these specific schools of thought, relating these tenets, as always, to the issues that frame the book’s major concern. For the purposes of this book, I will organize these pre-existing approaches into realist, neo-realist, neoliberal, liberal, constructivist, and quasi-constructivist approaches.12 In my view, although separable in significant respects, quasi-constructivism is nevertheless broadly constructivist in orientation. Similarly, it is also important to note that, as Jeffrey Checkel and Jennifer Sterling-Folker have each argued, upon closer inspection, the differences in the approaches of these ‘‘schools’’ to the value of international institutions are not always as great as they seem at first sight.13 As such, while they are duly noted, the differences between the ‘‘schools’’ are not artificially over-emphasized.

2.2.1 Realism Given the definition of institutionalism as the view that international institutions matter,14 it is extremely hard not to conclude that realism is the least ‘‘institutionalist’’ of all the approaches mentioned above. While none of the six approaches outlined above denies international institutions any autonomous impact whatsoever, realism comes closest to this position.15 12

13

14

Again, I must note that commonalities do exist among the various categories. For instance, neo-liberalism is related to liberalism, realism, and neo-realism. All four share a rationalist commitment. Again, some forms of constructivism are largely rationalist as well. It must also be emphasized that internal divisions do exist within each of these approaches. For instance, Hasenclever et al. have made a tenable distinction between weak and strong cognitivism. See Hasenclever et al., supra note 11, at 5–6. See J. Checkel, ‘‘Why Comply? Constructivism, Social Norms and the Study of International Institutions’’ available at www.arena.uio.no/publications/wp99_24.htm at 2; and J. Sterling-Folker, ‘‘Competing Paradigms or Birds of a Feather? Constructivism and Neo-Liberal Institutionalism Compared’’ (2000) 4 International Studies Quarterly 97 at 100 and 105–110. See Hasenclever et al., supra note 11, at 2. 15 Ibid. at 3.

CONVENTIONAL CONCEPTIONS OF IHIs

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Classic realism’s central tenet is a focus and stress on the (usually asymmetrical) nature of power relationships as the key explanation for the creation, character, relevance, behaviour, and effectiveness of international institutions. In such strongly power-based approaches, all other factors are at best epiphenomenal. According to these approaches international institutions, be they regimes or organizations or both, do not matter very much in themselves because they produce very few significant effects autonomously. Whatever effects these institutions have are attributed, it is said, to the nature of the power relations among the relevant cooperating states. The principal exponents of this form of realism in the American academy have been Hans Morgenthau, George Kennan, and Henry Kissinger.16 In recent years, its best known proponent has been John Mearsheimer. He had fairly recently reinvigorated the realist/institutionalist debate by declaring, inter alia, that international institutions ‘‘have no independent effect on state behaviour’’ and that they ‘‘matter only on the margins.’’17 However, despite the dominance of this approach to the study of international institutions in the era of ‘‘anti-idealism’’ that followed World War II, this ‘‘school’’ is now very much in relative decline, at least in its classic manifestation.18 This decline has been marked by the rise of neo-realism (or structural realism) and neo-liberalism: two avowedly rationalist but largely different ‘‘schools’’ which, all the same, share a commitment to the application of micro-economic analysis to the study of international institutions. I will now examine briefly the central tenets of neo-realism, before turning to a discussion of the core propositions of neo-liberalism, and then to a brief examination of their major differences.

2.2.2 Neo-realism While the explanatory power of the asymmetrical relations of power which characterize the international system remains important and central to neo-realist theories, its adherents differ from their realist 16

17

18

For instance, see H. Morgenthau, ‘‘Positivism, Functionalism, and International Law’’ (1940) 34 American Journal of International Law 260; G. Kennan, American Diplomacy (revi edn, Chicago, University of Chicago Press, 1984); and H. Kissinger, Diplomacy (New York, Simon and Schuster, 1994). See J. Mearsheimer, ‘‘The False Promise of International Institutions’’ (1994) 19 International Security 5. See J. Donnelly, Realism and International Relations (Cambridge, Cambridge University Press, 2000), p. 1.

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progenitors because of the centrality of ‘‘science,’’ i.e. micro-economic analysis, to their approach, and their commitment to structural analysis (in this case, mostly the structure of ‘‘anarchy’’). Kenneth Waltz, whose work has been a key component of this ‘‘school,’’ focused on the effects that the distribution of power in the international system might have on what he saw as the inevitable contests among states for relative advantage.19 Thus, like most realists and neo-realists, Waltz saw ‘‘power’’ as the critical explanatory factor in assessing both the behaviour of states and the effectiveness of international institutions. To them, ‘‘the alpha and omega’’ of understanding inter-state order is a thesis that suggests that order in the world system (which is itself an endless state of war) results from the attempts made by states to organize ever-shifting balances of power.20 This is not to say, however, that no realist or neo-realist scholar has ever attributed some level of significance to international institutions. Robert Keohane has noted, quite correctly, that Joseph Grieco, E. H. Carr, and even Hans Morgenthau, admitted that institutions do in fact matter in international cooperation.21 The critical element that has identified a realist has been a tendency to view ‘‘power’’ as crucial to the construction of a viable explanation of the creation and functioning of these international institutions: power plays the paramount role in the institutional bargaining system. However, as Mearsheimer’s recent intervention clearly showed, most realists (with or without the ‘‘neo’’ prefix) have remained rather sceptical of the view that international institutions matter in some independent way in international cooperation. Indeed, Keohane had captured this tendency when he declared that: The most influential book on international politics published during the past fifteen years [i.e. 1975–1990] essentially ignores international institutions, and its theoretical framework [i.e. realism] denies that they are fundamentally important.22

Yet, even neo-realism, so recently dominant, has now lost its widespread appeal, at least in the ‘‘Western’’ academe. Given the reality of the 19

20

21

22

See K. Waltz, Theory of International Politics (New York, Random House, 1979). For an extended critique of this ‘‘school,’’ see R. Ashley, ‘‘The Poverty of Neorealism’’ (1984) 38 International Organisation 225 (describing neo-realism as ‘‘an orrery of errors’’). See S. Hoffman, ‘‘Foreword’’ in H. Bull, The Anarchical Society: A Study of Order in World Politics (New York, Columbia University Press, 1977), pp. vii-ix. See R. O. Keohane, ‘‘Multilateralism: An Agenda for Research’’ (1990) XLV International Journal 731 at 735. Ibid. at 733.

CONVENTIONAL CONCEPTIONS OF IHIs

19

evidence that states in fact devote a huge amount of resources and energy to international institutions, the obvious presumption has to be that institutions have mattered to state actors.23 At the same time, it has also been quite clear that international institutions have been both proliferating at an exponential rate24 and growing in power.25 Indeed, according to some legal scholars, most states have, most of the time, had a very strong faith in institutions as the site for international cooperation, as autonomous instruments for resolving their cooperation problems.26 As Keohane has noted, the burden of rebutting this presumption lies therefore with realism.27 Given realism’s failure so far to convince most scholars that it has indeed rebutted that presumption, the decline of that school has not been all that surprising.

2.2.3 Neo-liberalism Attempting to fill the void left by realism’s decline as the dominant theoretical framework for the study of international cooperation and institutions, and hoping to rescue classic liberalism from its confinement, during the heydays of realist thought, to the margins of the discipline, neo-liberalism or neo-liberal institutionalism has become one of the most popular ‘‘schools’’ in this area of scholarship. Separated from classic liberalism by its attempt to become a ‘‘true’’ science via the adoption of a micro-economic analytical framework, neo-liberalism is an interest or preference-based theory of international institutions that views states principally as ‘‘rational egotists’’ who seek constantly to maximize their interests. It views states as self-centred, atomistic actors whose identities, powers, and fundamental interests are prior to the international society and its 23

24

25

26

27

See R. O. Keohane and L. L. Martin, ‘‘The Promise of Institutionalist Theory’’ (1995) 20 International Security 39 at 40–41. See R. P. Alford, ‘‘The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance’’ (2000) ASIL Proceedings 160. See D. Bradlow and S. Schlemmer-Schulte, ‘‘The World Bank’s New Inspection Panel: A Constructive Step in the Transformation of the International Legal Order’’ (1994) 54 Heidelberg Journal of International Law 392 at 412. See C. Tennant, ‘‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’’ (1994) 16 Human Rights Quarterly 1. See also D. Kennedy, ‘‘The Move to Institutions’’ (1987) 8 Cardozo Law Review 841. See Keohane and Martin, supra note 23, at 48.

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institutions; that is as exogenously given.28 According to Hasenclever et al., neo-liberal theories see international institutions as important in helping states realize their common interests.29 Yet, these theories remain sensitive to the effects of power differentials among states upon cooperation.30 To them, institutions are markedly important: they help self-interested states coordinate their behaviour such that they may avoid collectively sub-optimal outcomes (or market failures).31 Thus, neo-liberal theory is unequivocally ‘‘institutionalist’’ in orientation.32 Yet its institutionalism is also bounded.33 It maintains that international institutions do not matter to the extent that they can constitute or essentially affect the preferences and identities of state actors.34 A very important characteristic of neo-liberal theories, their synthesis of power-based and interest-based analysis, i.e. of realism and liberalism, that allows crucial roles to both ‘‘power’’ and ‘‘interest,’’ is captured in a passage from the work of Inis Claude, as well as in a description of liberal institutionalism by Robert Keohane and Lisa Martin. According to Claude: International Institutions provide opportunities for states, singly and individually, to influence each other. The facilities that they offer and the processes that they set in motion make it possible for states to exercise power in new ways, to utilize capabilities that have never before counted for much in international relations . . . These agencies have not, of course, rendered the conventional varieties of power irrelevant to international relations, nor have they made the new varieties decisive, but they have expanded the list of resources and methods available to states for affecting the policies and actions of other states.35

For their part, Keohane and Martin describe neo-liberals as contending that when state elites do not foresee self-interested benefits from cooperation, they (that is, neo-liberals) do not expect cooperation to occur, and do not expect the institutions which facilitate international cooperation to develop and/or have significant impact.36 In their view, it is by seeking 28 30

31 35

36

See Hasenclever et al., supra note 11, at 5. 29 Ibid. at 4. Ibid. See also M. A. Levy et al., ‘‘The Study of International Regimes’’ (1995) 1 European Journal of International Relations 267 at 290–308 (arguing that the correspondence between state behaviour and a regime is co-determined by interest and power). See Hasenclever et al., supra note 11, at 4. 32 Ibid. 33 Ibid. 34 Ibid. See I. L. Claude, Swords into Ploughshares: The Problems and Progress of International Organisation (New York, Random House, 1984), pp. 435–436. See Keohane and Martin, supra note 23, at 41–42.

CONVENTIONAL CONCEPTIONS OF IHIs

21

to specify the conditions under which international institutions can have an impact, and cooperation can occur, that institutionalist theory shows under what conditions realist theory can be valid.37 Given the similarities between realism and neo-liberalism, especially the latter’s acknowledgement of the importance of power differentials in institutional dynamics, and their shared micro-economic analytical optics, and given the accusations of ‘‘continued fidelity to their realist heritage’’ that has been leveled at neo-liberals by cognitivists,38 it is important to point out that the major difference between the two ‘‘schools’’ is that neo-liberals are much more optimistic and far less circumscribed than realists about the extent to which international institutions can matter. While, as Slaughter, Tulumello, and Wood have recently noted, ‘‘institutionalism’’ (the view that institutions fundamentally matter) is now dominant in the North American academe,39 there is still much difference in the different brands of institutionalist thinking that have so far gained currency in that context. For instance, neo-liberal theories have been challenged by their more classic or ‘‘republican liberal’’ cousins, and by constructivism, ‘‘quasi-constructivism,’’40 and other generally reflective/cognitive strands. None of these basically institutionalist approaches is fundamentally sceptical about ‘‘institutionalism.’’ The disagreements within the broad institutionalist umbrella ‘‘school’’ largely concern competing or different explanations of institutionalism. Having already explored the major ideas of neo-liberalism related to the dynamics of international institutions, I will proceed by explicating the central tenets of both republican liberalism (especially as recounted and applied by Andrew Moravcsik) and (various types of) constructivism. Because of space and focus constraints, I shall not explore all the ‘‘other’’ kinds of cognitivism available in any detail. I shall rely on the exposition of that ‘‘school’’ which has been recently offered by Hasenclever et al. My exploration of constructivism (a major movement 37 39

40

Hasenclever et al., supra note 11, at 4. 38 Ibid. at 5. See A. Slaughter, A. S. Tulumello, and S. Wood, ‘‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’’ (1998) 92 AJIL 367 at 372. I have coined this term to capture the work of a number of scholars who have applied and/or urged a synthesis of constructivist and rationalist approaches. I have in mind scholars like Martha Finnemore and Kathryn Sikkink. These scholars have used various terms to describe the import of their own work; I use this label to capture a range of scholarship that includes all of them. See, e.g., Finnemore and Sikkink, infra note 194.

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within cognitivism) will be more extensive than my consideration of any other cognitive strand.

2.2.4 Republican or classic liberalism As developed and applied by Andrew Moravcsik, republican liberal approaches to the study of international institutions assert that: the most fundamental influence on international cooperation is not relative power, as Realist theory asserts, nor the institutionalized contractual environment, as institutionalist (sometimes termed neoliberal) theory maintains. In the Liberal view, the most important factor defining the opportunities for and constraints on cooperation is the level of convergence of national preferences, which in turn reflects the demands of those domestic groups represented by the state. Effective international regimes [or institutions] are likely to emerge only where they have deep roots in the functional demands of groups in domestic or transnational society as represented by the domestic political institutions that mediate between society and the state. Regimes [or institutions] foster compliance with international norms not by altering the external incentives facing a unitary state but by altering the domestic incentives facing societal groups and politicians thereby shifting the domestic coalitions that define state preferences.41

This theory is grounded in broader liberal and ‘‘democratic peace’’ theories,42 whose most important dual contributions to the study of international institutions have been their stress on the necessity for the analytic dis-aggregation of the unitary state structures that have been taken for granted too often by other theories, and their focus on the domestic sources of regime creation, strength, and impact/effectiveness.43 Republican liberal theories depart from their neo-liberal intellectual ‘‘cousins’’ by emphasizing ‘‘the prior convergence of domestic policies and institutions’’ as much more central to understanding the effectiveness of international institutions than ‘‘the intergovernmental bargains on the basis of reciprocity’’ which are stressed by neo-liberals.44 41

42

43 44

See A. Moravcsik, ‘‘Explaining International Human Rights Regimes: Liberal Theory’’ (1995) 1 European Journal of International Relations 157 at 158 (emphasis added). See D. S. Sullivan, ‘‘Effective International Dispute Settlement Mechanisms and the Necessary Condition of Liberal Democracy’’ (1993) 81 Georgetown Law Journal 2369 at 2370. See Slaughter et al., supra note 39, at 383. See Moravcsik, supra note 41, at 184.

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Regimes, treaties, or other international institutions serve as trump cards in domestic political games.45 The role of domestic actors, including activist forces, is thus stressed.

2.2.5 Constructivism I will now discuss the central tenets of constructivism.46 This discussion will be prefaced by a general discussion of cognitivism – an approach to the study of international institutions of which constructivism constitutes a principal chunk.47 Cognitivists stress the critical importance of ideas, knowledge, and norms in understanding and explaining the creation, behaviour, and impact of international institutions. Here, I will again rely on the typologies and analytical distinctions that Hasenclever, Mayer, and Rittberger have produced.48 In its strong version, cognitivism accuses neo-liberals, who emphasize the rational pursuit of self-interests by egoistic state actors, of presenting a truncated picture of the resilience and effectiveness of international institutions by failing to take adequate account of the repercussions of institutionalized practices on the identities of international actors.49 Weaker versions of cognitivism emphasize the history and context of preference formation by states: how does 45

46

47

48

See E. Benvenisti, ‘‘Domestic Politics and International Resources: What Role for International Law’’ in M. Byers (ed.), The Role of Law in International Politics (Oxford, Oxford University Press, 2000), p. 109. This term is attributed to Nicholas Onuf, who is said to have coined it only in 1989. As such, the school is of ‘‘relatively recent vintage.’’ Constructivism was, however, influenced by the earlier work of Deustch, Weber, and Durkheim, as well as by the more contemporary writings of Jurgen Habermas. For each of these points, see Brunnee and Toope, infra note 68, at 26–28. Cognitivists are often referred to as ‘‘critical international relations theorists.’’ As Alexander Wendt has noted: ‘‘Critical IR ‘theory,’ however, is not a single theory. It is a family of theories that includes postmodernists (Ashley, Walker), constructivists (Adler, Kratochwil, Ruggie, and now Katzenstein), neo-marxists (Cox, Gill), feminists (Peterson, Sylvester) and others. What unites them is a concern with how world politics is ‘socially constructed’ which involves two basic claims: that the fundamental structures of international politics are social rather than strictly material . . . and that these social structures shape actors identities and interests, rather than just their behaviour . . . Some critical theorists are statists and some are not; some believe in science and some do not; some are optimists and some pessimists; some stress process and some structure.’’ See A. Wendt, ‘‘Constructing International Politics’’ (1995) 20 International Security 71 at 71–72. See Hasenclever et al., supra note 3, at 136–139. 49 Ibid.

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a state come to perceive Y or X as ‘‘in its interest’’?50 Weak cognitivists accept more of rationalism than strong cognitivists: they are comfortable with a conception of states as rational utility-maximizers, as long as it is recognized that the perception of utility depends on knowledge, and that knowledge, being irreducible to material structures, is an autonomous variable.51 Strong cognitivism offers a much deeper critique of the rational actor model, and is more concerned with the problematization of the existence and nature of states as competent actors in international politics: states (and their self-understandings and interests) are in fact constituted by knowledge, ideas, and norms, and international institutions are prerequisites for, rather than consequences of, rational choices.52 Therefore, in the view of cognitivists, rationalist approaches, whether interest or power-based, at best need to be supplemented, and at worst sometimes supplanted.53 Constructivists are, of course, cognitivist or reflective in orientation.54 As Slaughter et al. have noted, the rise of contructivism over the past decade or so has posed a serious challenge to the rationalist account of international institutions.55 Scholars such as Ernst Haas, Peter Haas, John Gerard Ruggie, Martha Finnemore, Alexander Wendt, and Frederich Kratochwil are some of the most notable members of this ‘‘school.’’56 In Wendt’s view, contructivists are sociological structuralists who abhor the adoption by neo-realists of the individualist metaphors of micro-economic structuralism, a move that restricts the effects of social structures (such as international institutions) to their impact on state behaviour, and which ignores the various ways in which those structures might also constitute the identities and interests of states.57 According to constructivists, the identities and interests of 50 54

55 56

57

Ibid. 51 Ibid. 52 Ibid. 53 Ibid. at 136. For a discussion of the reflective nature of this school, see A. Hurrell, ‘‘International Society and the Study of Regimes: A Reflective Approach’’ in V. Rittberger (ed.), Regime Theory and International Relations (Oxford, Oxford University Press, 1993), p. 49. See Slaughter et al., supra note 39, at 373. See E. B. Haas, When Knowledge is Power (Berkley, University of California Press, 1990); Haas, infra note 65; J. G. Ruggie, ‘‘What Makes the World Hang Together? NeoUtilitarianism and the Social Constructivist Challenge’’ (1998) 52 International Organisation 855; M. Finnemore, ‘‘International Organisations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organisation and Science Policy’’ (1993) 47 International Organisation 565; A. Wendt, ‘‘Anarchy is What States Make of it: The Social Construction of Power Politics’’ (1992) 46 International Organisation 391; and F. Kratochwil, ‘‘The Force of Prescriptions’’ (1984) 38 International Organisation 685. See Wendt, supra note 5, at 72.

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states would not exist in the forms in which they are seen to exist in the absence of the relevant social structure. For these scholars, social structures have three elements: shared knowledge, understandings, and expectations; material resources (which can only acquire meaning via the structure of shared knowledge, understandings, and expectations); and practices (in which these social structures exist).58 Ernst Haas’ articulation of a similar point merits reproduction in extenso. According to Haas: All international organizations are deliberately designed . . . to ‘‘solve problems’’ that require collaborative action for a solution. No collaboration is conceivable except on the basis of explicit articulated interests. What are interests? . . . Interests are not the opposite of ideas or values. An actor’s sense of self-interest includes the desire to hedge against uncertainty, to minimize risk. One cannot have a notion of risk without some experience with choices that turned out to be less than optimal; one’s interests are shaped by one’s experiences. But one’s satisfaction with an experience is a function of what is ideally desired, a function of one’s values. Interests cannot be rearticulated without values. Far from (ideal) values being pitted against (material) interests, interests are unintelligible without a sense of values-to-be-realized. The interests to be realized by collaborative action are an expression of the actors’ values.59

Thus, to constructivists, international institutions matter fundamentally in international politics and cooperation. In Kratochwil’s view, institutions, by constructing norms, ideas, and knowledge and disseminating them, often alter fundamentally a state’s or other actor’s conceptions of rational action (that is, these institutions shape what rational action means or involves and structure the environment in which rational action is possible).60 Institutions shape our conceptions of ‘‘what the situation is’’ and ‘‘how appropriate certain alternatives are in the said situation.’’ They help shape the self-understandings and conceptions of interests held by states. Even the very process of the identification of a regime or other international institution is said to rest on ‘‘their principled and shared understandings of desirable 58 60

Ibid. at 73–74. 59 See Haas, supra note 56, at 2 (emphasis added). See F. Kratochwil, ‘‘Norms versus Numbers: Multilateralism and the Rationalist and Reflexivist Approaches to Institutions: A Unilateral Plea for Communicative Rationality’’ in J. G. Ruggie (eds.), Multilateralism Matters: The Theory and Praxis of an Institutional Form (New York, Columbia University Press, 1993), p. 471.

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and acceptable forms of social behaviour.’’61 Against positions that Kratochwil has described as produced by a strange symbiosis of realism and legalism (the attempt by realism to cleanse itself of all normative conceptions – save power – and the attempt by legalism to free itself from all social and moral contingencies),62 constructivists affirm the power of ideas, values, knowledge, and norms, as well as the various roles that these factors play in the constitution of the interests and identities of state actors. Ernst Haas has articulated a thesis regarding the fundamental role that values and knowledge play in the understanding of problems, and the identification and constitution of the interests of states.63 John Gerard Ruggie has also articulated a similar argument.64 Peter Haas has specifically shown how an international institution, the regime of the Mediterranean Action Plan on Pollution Control, has played a key role in altering the balance of power within Mediterranean governments (by empowering a group of experts).65 In this case, the involvement of an ‘‘epistemic community’’ of scientists in the United Nations Environmental Program, and as part of national governments, led to state interests reflecting increasingly the environmental view of these scientists, and this led state behaviour to eventually reflect this environmentalist view as well.66 Martti Koskenniemi’s examination of the role of legal norms and institutions in the constitution of collective security discourse at the United Nations is another such instructive illustration.67 His emphasis on the ‘‘internal perspective’’ of the legal and diplomatic representatives of states working in an interactional institutional environment such as the United Nations Security Council is an excellent ‘‘constructivist,’’ or at least cognitivist, account of international institutional dynamics.

61

62

63

64

65

66 67

See F. Kratochwil and J. G. Ruggie, ‘‘International Organisation: A State of the Art on an Art of the State’’ (1986) 40 International Organisation 753 at 764. See F. Kratochwil, ‘‘How do Norms Matter?’’ in M. Byers (ed.), The Role of Law in International Politics (Oxford, Oxford University Press, 2000), p. 35 at 38. See Haas, supra note 56. See also J. Ellis, ‘‘The Regime as a Locus of Legitimacy in International Law’’ (1997) 13 (special issue) International Insights 111 at 119–125. See J. G. Ruggie, ‘‘International Responses to Technology: Concepts and Trends’’ (1975) 29 International Organisation 557 at 560–568. See P. Haas, ‘‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’’ (1989) 43 International Organisation 377. Ibid. at 380. See M. Koskenniemi, ‘‘The Place of Law in Collective Security’’ (1996) 17 Michigan Journal of International Law 455 at 464–480.

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Thus, according to the constructivist thesis, the study of the impact of international institutions must take very seriously the ways in which these institutions can shape, have shaped, and do constitute, the selfunderstandings, preferences, and interests of states (and not merely focus on how these institutions shape state behaviour – as neo-liberals are wont to do). These institutions do so by fostering ‘‘shared understandings’’ among institutional actors, who relate or interact with each other in the institutional context. Therefore, understanding how people think about norms and institutions is as important as measuring the behaviour that changes in response to the invocation of these norms. This concern for the role of norms and institutions is one that many international lawyers share with constructivist international relations theorists.68 Thus, in the constructivist view, we can expect to find effective institutions where institutions have been successful at shaping the preferences, interests, and power of states and other institutional actors in ways that conduce to institutional goals. Peter Haas’ study of the Mediterranean pollution regime is an apt illustration of this kind of constructivist analysis. As I will demonstrate in this book as a whole, this constructivist analytical framework is a very powerful and perceptive one, especially in relation to attempts to explain IHIs. Indeed, my own work in this book is best understood through a constructivist optic. Yet, as even constructivists themselves have acknowledged, theirs is not a perfect or totalizing optic. As Brunnee and Toope have recently put it, ‘‘something is missing from the [constructivist] equation.’’69 Once it is conceded that norms and institutions are relevant and prior to the constitution of the preferences and identities of states or other institutional actors, it becomes clear that that missing ‘‘something’’ is a convincing and ‘‘coherent explanation of exactly how norms and institutions in fact operate to shape identities and persuade actors to alter their behaviour’’ both generally and in specific contexts.70 That constructivism is not a perfect theory of international institutional dynamics is not at all unexpected. Neither is it that

68

69

See J. Brunnee and S. J. Toope, ‘‘International Law and Constructivism: Elements of an Interactional Theory of International Law’’ (2000) 39 Columbia Journal of Transnational Law 19 at 21. Brunnee and Toope want to ‘‘show that there is a class of norms called law that . . . is possessed of a special ability to influence the self-perception and behaviour of international actors.’’ See at 24. Ibid. at 33–34. 70 Ibid.

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surprising. After all, did not Robert Keohane suggest as far back as 1988 that: no general theory of international politics may be feasible. It makes sense to seek to develop cumulative verifiable knowledge, but we must understand that we can aspire only to formulate conditional, context-specific generalizations rather than to discover universal laws, and that our understandings of world politics will always be incomplete.71

Moreover, as Jack Donnelly has noted, both ‘‘realist’’ and neo-liberal institutionalist theories have ‘‘blind spots’’ of their own.72 I am in complete agreement with Finnemore and Sikkink that constructivist scholars have never made sweeping imperialistic claims,73 at least not of the bold, sweeping sort that realists have been accused of being prone to.74

2.2.6 Quasi-constructivism It is, at least in part, a recognition of the existence of this slight gap in the constructivist account of the impact of international institutions that has led a number of scholars to seek to rethink aspects of constructivism, and propose revised and eclectic forms of that analytical framework. Perhaps the best known version of this kind of revised and eclectic form of constructivism, a tendency that I shall refer to as ‘‘quasiconstructivism,’’ is Martha Finnemore’s and Kathryn Sikkink’s concept of a ‘‘strategic social constructivism’’ that emphasizes the role of norms in the constitution of the identities and interests of actors, and yet accords at least as equal a value to the ‘‘rational strategizing’’ of relevant actors.75 In their view, the real fights within international institutional theory are not, and should not be, about whether or not rationality plays some kind of a role in norm-based behaviour.76 In their view, it obviously does play some kind of role. Rather this debate should be about the precise nature of the link between rationality and norm-based behaviour.77 This ‘‘liberal’’ kind of constructivism (that co-emphasizes 71 72 73 74

75 76

See Keohane, supra note 2, at 379–380. See Donnelly, supra note 18, at 131. See Finnemore and Sikkink, infra note 194, at 914. See Donnelly, supra note 18, at 133; Ashley, supra note 6 and Keohane and Martin, supra note 23, at 42. Finnemore and Sikkink, infra note 194, at 888. Ibid. at 911. 77 Ibid.

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rational strategizing and the constitutive roles of norms/institutions) has also featured in the work of Thomas Risse.78 Audie Klotz’s account of the eventual effectiveness of the struggle against Apartheid may also be classified among the quasi-constructivist accounts of international politics.79 For their own part, Finnemore and Sikkink have argued that ‘‘strategic social constructivism’’ is a much better explanation for the impact of international institutions in the human rights area. This is because, unlike previous constructivist or rationalist accounts, it captures both the rational and normative aspects of actor behaviour. It tends to show more precisely the nature of the link, in a specific context, between rationality and norm-based behaviour. In seeking to demonstrate their point, Finnemore and Sikkink first map what they term the ‘‘the norm life-cycle,’’ a three-stage process of norm emergence, norm cascade, and norm internalization.80 Norm emergence occurs when a handful of states (norm leaders) are persuaded by norm entrepreneurs, usually civil society actors (CSAs), especially human rights non-governmental organizations (NGOs), to embrace new norms.81 Norm cascade occurs when these norm leaders attempt to socialize other states, eventually causing the norm to ‘‘cascade’’ throughout the society of states, leading at the far end to norm internalization (when norms acquire a ‘‘taken-forgranted’’ quality).82 In their view, actors conform to this ‘‘strategic social constructivism’’ model because such actors, in fact, make detailed ‘‘endmeans calculations’’ to maximize their utilities, but the utilities they want to maximize involve changing the other player’s utility function in ways that reflect the normative commitments of the actor.83 This broadly constructivist thesis is a well crafted one, and may be one of the most convincing of the existing explanations of norm and institutional dynamics in the human rights area. On the whole, however, most of the specific ‘‘schools’’ that I have discussed in the previous pages (save for the republican liberals and most constructivists) has tended to be quite (not totally) state-centric; overly focused on the international plane; and either too compliance-oriented 78

79

80 81

See T. Risse-Kappen, ‘‘Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War’’ (1994) 48 International Organisation 185; and T. Risse, ‘‘Let’s Argue! Communicative Action and International Relations’’ (2000) 54 International Organisation 1. See A. Klotz, Norms in International Relations: The Struggle Against Apartheid (Ithaca, Cornell University Press, 1995). See Finnemore and Sikkink, infra note 194, at 895. Ibid. 82 Ibid. 83 Ibid.

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or too enforcement-centered. Many of the number have been quite (not totally) positivistic, and few have been as holistic as they could be. This is not to dismiss all these ‘‘schools’’ of thought as irrelevant (they are in fact very relevant). The point is that these tendencies have been strong enough within these schools as to prevent them from offering satisfactory accounts of the ways in which IHIs can exert influence.

2.2.7 State-centrism Over a decade ago, Robert Keohane felt able to declare that ‘‘as formulated to date [1988], both rationalistic and . . . reflective approaches share a common blind spot: neither pays sufficient attention to domestic politics.’’84 This tendency cuts across most ‘‘schools,’’ and even constructivism (with its somewhat extensive commitment to sub-state analysis) does not escape completely. Writing as recently as 2000, Brunne´e and Toope noted that: Some strains of constructivism continue to undervalue (while always acknowledging as relevant) the roles played by other [non-state] actors such as intergovernmental organizations, corporations, and NGOs, in shaping world politics.85

They cite Wendt’s work as particularly illustrative of this state-centric bent in constructivism.86 Wendt himself has openly acknowledged the state-centric orientation of his and some other constructivist scholarship.87 The only real bone of contention may be the extent to which such work has been overly state-centric. I agree with Brunne´e and Toope that some constructivists have been overly state-centric in orientation. Against the general trend toward sub-state analysis within that school,88 these minority strains of constructivism have not paid as much attention as they could to sub-state actors whose activities shape international 84 85 86

87

88

See Keohane, supra note 2, at 392. See Brunnee and Toope, supra note 68, at 33 (emphasis added). See A. Wendt, ‘‘Collective Identity Formation and the International State’’ (1994) 88 American Political Science Review 384. See Wendt, supra note 5, at 72 (declaring that constructivists and realists share a commitment to states as units of analysis). See T. Hopf, ‘‘The Promise of Constructivism in International Relations Theory’’ (1998) 23 International Security 171 at 194–195 (arguing that ‘‘constructivism provides a promising approach for uncovering those features of domestic society, culture, and politics that should matter to state identity and state action in global politics’’).

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politics. This is not of course to suggest that a focus on states as one of the units of analysis ought to have been completely abandoned. Few serious scholars could suggest that at this moment of world history. What is being suggested is that there has been a historical reluctance to engage with these non-state units of analysis and sources of regime viability. But things have been changing rapidly, to the point that every welldressed internationalist now proudly wears her non-state actor garb. The work of scholars such as Martha Finnemore, Audie Klotz, Kathryn Sikkink, Andrew Moravcsik, Margaret Keck, Thomas Risse, and Stephen Ropp, Anne-Marie Slaughter, Abraham Chayes, and Antonia Handler Chayes, Eyal Benvenisti, and Ann-Marie Clark have followed the earlier work done by Richard Ashley, R. B. J. Walker, and Keohane and Nye, in establishing sub-state analysis as an important part of the study of international politics and institutions.89 However, only relatively rarely has the central role played by local (as opposed to international or transnational) networks of activist forces (including CSAs) been emphasized in the foregoing literature. Where the role of local groups is analyzed at all, it is usually either as an NGO movement that is a mostly subordinated part of an international/transnational network, or simply as domestic political elites struggling for state power. I will comment on this issue in greater detail in section 2.3 of this chapter. Suffice it to note, though, that both the state-centric bent and the tendency not to focus adequately on local activist forces have had implications for the nature of conventional conceptions of the processes via which international institutions become effective.

2.2.8 Emphasis on the international plane The concomitant result of an emphasis on states as the near exclusive units of analysis has been a corresponding emphasis (in most of the 89

See Ashley, supra note 6, at 238–242; Walker, supra note 6, at 179; R. O. Keohane and J. Nye, Power and Interdependence (2nd edn, Glensview, Scott Foresman, 1989); R. O. Keohane and J. Nye, ‘‘Globalization: What’s New? What’s Not? (And so What?)’’ (2000) 118 Foreign Policy 104; M. Finnemore, ‘‘Are Legal Norms Distinctive?’’ (2000) 32 New York University Journal of International Law and Politics 699; Finnemore, supra note 56, at 592; A. Chayes and A. H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Mass., Harvard University Press, 1995); E. Benvenisti, ‘‘Exit and Voice in the Age of Globalization’’ (1999) 98 Michigan Law Review 167; and A. Clark, ‘‘Non-Governmental Organisations and their Influence on International Society’’ (1995) 48 Journal of International Affairs 507.

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literature) on the international plane: the effects that the interaction of states within the relevant international institution may have on their behaviour toward each other (as opposed to its impact on the behaviour of their domestic institutions toward their own citizens). The international legal literature has not been much better at discussing this issue. Again, this criticism is not all encompassing, for many international relations (IR) and legal scholars have begun fairly recently to map the impact of specific international institutions on specific national orders. This kind of work has been done by Ann-Marie Slaughter, Lawrence Helfer, Walter Matli, Kathryn Sikkink, Martha Finnemore, Margaret Keck, Thomas Risse, Stephen Ropp, Thomas Franck, and Gregory Fox – just to name a few.90 As will soon become quite clear, the absence of a focus on the impact of international institutions within states does constrain the capacity of the relevant analytic optics to reveal the full extent of the value of such institutions to real concrete people.

2.2.9 Excessive positivism Again, most of the relevant literature, cutting across the various schools mentioned (except for the work of some constructivists and some other cognitivist scholars) has been quite positivist in orientation.91 Now, it must be noted early on that as Richard Ashley has himself admitted, all social science aspiring to theory has had a positivist dimension.92 This is in practice virtually unavoidable. The present study does not itself claim to avoid a measure of positivism. Yet, one of the main thrusts of the cognitivist assault on neo-realism has been the latter’s excessive positivism. Indeed, as Kratochwil and Ruggie have noted, most theoretical treatments of international institutions have been quite positivistic in the sense of the radical separation of object/subject, and have as well been hesitant to take values, norms, ideas, and knowledge as seriously as 90

91

92

See W. Mattli and Anne-Marie Slaughter, ‘‘Revisiting the European Court’’ (1998) 52:1 International Organisation 177; Anne-Marie Burley and W. Mattli, ‘‘Europe before the Court: A Political Theory of Legal Integration’’ (1993) 47 International Organisation 41; K. Sikkink, ‘‘Human Rights, Principled Issue-Networks, and Sovereignty in Latin America’’ (1993) 47:3 International Organisation 411. By positivism is meant the position that holds that social conduct is treatable as an object (just like the objects in the natural world) to be observed accurately by human subjectivity. Social conduct is neither produced by discourse nor lies within the discourse. Thus, positivism asserts a radical separation between social conduct, the object, and human subjectivity, the subject. See Ashley, supra note 6, at 248–254. See Ashley, supra note 6, at 249 n. 56.

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they could.93 Interestingly, Brunnee and Toope have found positivist underpinnings in the work of even committed and thoughtful constructivists such as Nicholas Onuf, Frederich Kratochwil, and Jeffrey Legro.94 This statement is also true for far too many other theorists of international institutions. Its validity becomes even more palpable when it is remembered that neo-liberalism is the dominant theory of international relations today, at least in the North American academe; and that the ‘‘neo’’ in neo-liberalism and neo-realism indicates the definition of those two schools of thought by their turn to micro-economic ‘‘scientific’’ or positivist analysis.95 A theory of international institutions is deeply affected, even circumscribed, by the extent of its positivism. This will shape the extent to which it is able to capture, ignore, or miss nonmaterial explanations for international institutional effectiveness. Too often, those who ignore or miss such non-material explanations are unable to explain, or even observe, many of the important ways in which international institutions can impact thinking and behaviour within domestic institutions or orders.

2.2.10 Compliance-centrism A related question is the vast extent to which much (not all) of the relevant literature (with the notable exception of most constructivists) has concentrated on mapping the (direct) compliance of states with international norms and international institutional arrangements. While this stress is understandable in the sense that such norms and institutions would definitely be effective if they were complied with almost all of the time, compliance in and of itself does not exhaust the totality of the ways in which international norms and institutions can matter fundamentally, or have significant effects. Thus, an institution is not altogether ineffective merely because most actors cannot be shown to comply directly with its ‘‘commands’’ most of the time. This much has been recognized by some scholars such as Louis Henkin, whose rhetorical question ‘‘compliance apart, has international law [and institutions] any other significance in shaping their [i.e. states’] conduct?’’ is instructive.96 93 94 95 96

See Kratochwil and Ruggie, supra note 61, at 764–766. See Brunnee and Toope, supra note 68, at 36–43. See Finnemore and Sikkink, infra note 194, at 890. See L. Henkin, How Nations Behave: Law and Foreign Policy (New York, Columbia University Press, 1979), p. 5. See also R. B. Bilder, ‘‘Beyond Compliance: Helping Nations

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It is suggested that norms and institutions may in fact help produce a ‘‘correspondence’’ in the requirement of the norm or goal of the institution and the self-understandings and/or behaviour of states without being seen directly to ‘‘cause’’ or generate compliance. This is the kind of phenomenon that Benedict Kingsbury had in mind when he challenged the tendency in the literature to view widespread non-compliance as necessarily indicative of the non-existence or ineffectiveness of a (legal) rule, norm, or institution.97 ‘‘Correspondence’’ is a much broader concept and phenomenon. Thus, while it should, of course, be retained as a most valuable starting point, the compliance-centered optic is not adequate on its own. To show how significant levels of ‘‘correspondence’’ may occur beyond the realm of direct compliance is one major objective of this book. However, a fuller explication of this phenomenon must await the discussions in chapters 4, 5, and 7. For now, it will suffice to discuss the nature of the prevalent understandings of ‘‘compliance’’ and show that the relevant literature has concentrated on mapping its presence or absence in the conduct of state actors within international institutions almost to the exclusion of other valuable forms of IHI value. At the beginning, it is important to problematize the concept of compliance itself. Kingsbury has correctly noted the widespread tendency in the relevant literature not to do so. He has also shown the fundamental but often unacknowledged linkages that exist between conceptions of ‘‘compliance’’ and prior theories about the nature of international (legal) norms and institutions. While largely focused on international legal norms and institutions, his arguments are still relevant to a more general discussion such as the present one. According to him: Discussion of compliance often proceeds as if . . . there was a shared understanding that compliance is adequately defined as conformity of

97

Cooperate’’ in D. Shelton (ed.), Commitment and Compliance (New York, Oxford University Press, 2000), p. 65. See B. Kingsbury, ‘‘The Concept of Compliance as a Function of Competing Conceptions of International Law’’ (1998) 19 Michigan Journal of International Law 345 at 346. Thus, Dinah Shelton and Chayes and Chayes are correct to distinguish between ‘‘compliance’’ (defined as the actual ‘‘matching of state behaviour and international norms’’ or institutions) and the general ‘‘correspondence’’ of behaviour with such norms or institutions. See D. Shelton, ‘‘Law, Non-Law and the Problem of ‘Soft Law’’’ in D. Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press, 2000), p. 2 at 5 and 17; and A. Chayes and A. H. Chayes, ‘‘On Compliance’’ (1993) 47 International Organisation 175 at 176.

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behaviour with legal rules, and the problems are about such matters as measuring, monitoring and improving compliance . . . [I make] the contrary argument that the concept of ‘‘compliance’’ with law [and institutions] does not have and cannot have meaning except as a function of prior theories of the nature and operation of the law [or institutions] to which it pertains.98

And so adherence to an Austinian command theory of international law and institutions often entails a subscription to an enforcement-based conception of the impact of international norms and institutions. In such a case, unless an institution ‘‘commands’’ obedience it would not be effective. Similarly, adherence to less positivist theories of law and institutions leads almost inexorably to a less Austinian but often still compliance-centered conception of the same phenomenon. Again, in this respect, adherence to a constructivist theory entails a broader view of compliance as flowing from the inter-subjective production of meaning regarding appropriate behaviour, identities, and interests, in an institutional atmosphere of interaction among relevant actors. Thus, although defined and applied in a certain way in most of the literature,99 ‘‘compliance’’ is itself a contested concept. I will now isolate and discuss the two kinds of compliance models that have been most present in the relevant literature. The first kind, which I shall refer to as the enforcement-based model, is avowedly ‘‘Austinian.’’ The second is what I will refer to as the ‘‘voluntary compliance-based model.’’ I will examine these two models one after the other.

Enforcement-based sub-approach According to the enforcement-based sub-model, rarely can an international norm or institution exert significant influence or generate compliance without being enforced or backed by sanction. If Martti Koskenniemi is correct, and I am of the view that he is, then it is safe to suggest that the enforcement-based sub-approach remains dominant even within international law scholarship and practice. In Koskenniemi’s view, lawyers – even international lawyers – often assume that the core of law consists of norms enforced by sanctions.100 This view 98 99

100

See Kingsbury, supra note 97, at 345–346. For example, see H. K. Jacobson and E. B. Weiss, ‘‘Compliance with International Environmental Accords’’ (1995) 1 Global Governance 119 (viewing ‘‘compliance’’ in terms of whether or not countries adhere to the dictates of the specific treaty, regime, or institution). See M. Koskenniemi, ‘‘The Pull of the Mainstream’’ (1990) 88 Michigan Law Review 1946 at 1954.

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is echoed by Brunnee and Toope who have suggested that social scientists and many lawyers tend to view international society, norms, law, and institutions through the prism of domestic legal systems, and thus find these international entities and prescriptions to be comparatively under-developed and wanting.101 Realists, who regard normative and institutional effects as epiphenomenal, have perhaps produced the strongest forms of the enforcementbased conceptions of international norms and institutions.102 Thus, to realists, compliance is little more than a calculation of interests in light of the existing distribution of power: if a legal or other institutional commitment is in the interest of a state and it has the power to act in a manner which better serves its interests, it will normally do so.103 Neoliberals, who see states as rational egotists pursuing their own narrow interests, but who must nevertheless cooperate in order to reduce the sub-optimal effects of international behaviour (market failures), are not always wedded to the enforcement-based model of compliance.104 For instance, Chayes and Chayes view the enforcement-based models as unrealistic and unconvincing explanations for widespread or sustained compliance, preferring a ‘‘managerial model’’ or ‘‘cooperative problemsolving model’’ that sits somewhat at the margins of classic rationalist approaches.105 To most other neo-liberal style theorists, the threat or imposition of sanctions by institutions (which increase the benefits of compliance) is central to the effectiveness of international norms and of these same institutions.106 Republican liberals, such as Moravcsik (and Slaughter?), who stress the analytical disaggregation of the unitary state, see domestic regime type as explanatory in the sense that they think that democratic states are more likely to comply with and implement international norms.107 They are not in general wedded to the enforcementbased sub-approach.108 Constructivists, who stress the role and power of norms and institutions in the constitution of states’ identities and interests, and those international lawyers (e.g. Martti Koskenniemi, Jutta Brunee, Stephen Toope, and Thomas Franck) who stress the ‘‘internal perspective’’ on norms and institutions, are perhaps the least enforcementbased in approach. To these scholars, norms and institutions achieve

101 102 105 106

See Brunnee and Toope, supra note 68, at 21–22. See Kingsbury, supra note 97, at 350. 103 Ibid. See Chayes and Chayes, supra note 97, at 2–3. See Kingsbury, supra note 97, at 352. 107 Ibid.

104

Ibid. at 351–352.

108

Ibid. at 356–357.

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real sustained influence on the thinking and behaviour of states by altering over time the inter-subjectively derived self-understandings and conceptions of self-interests held by states and other actors. Thus, in the view of most constructivists and some international lawyers, sanctions and enforcement measures are not the key reason for compliance. In the end, I agree with Brunnee and Toope that: Most obviously, a complex understanding of law, not as a simple imposition of authority by coercion, but as a purposive enterprise, would encourage both international lawyers and [some] constructivists to abandon the vain hope of ‘‘enforcement’’ of abstract norms unrooted in social practice.109

This is not, of course, to deny that the enforcement of an international norm or institutional arrangement can be important in many cases, particularly with regard to the most egregious of violations.110 The point that is being made here is that, as Chayes and Chayes et al. have shown, this kind of day-to-day, consistent enforcement of norms and institutional arrangements is quite simply neither realistic nor sustainable, especially in our ‘‘horizontal’’ international order.111

Voluntary compliance-based sub-model The second kind of compliance sub-approach that has been present in the literature is the ‘‘voluntary compliance-based’’ sub-approach. The principal organizing idea for this sub-model is that the absence of enforcement is not necessarily indicative of weak institutional capacity. Scholars who adopt this approach have paid much more attention to (a) describing the processes through which the voluntary compliance of states is routinely secured in the real world, and (b) finding and describing ways of enhancing the prospects that states will comply voluntarily with their international normative or institutional obligations. Though scholars have for quite some time argued in favour of this sub-approach, it has not always been as widely adhered to as the enforcement-based sub-approach.112 As Brunnee and Toope, and

109 111 112

Ibid. at 68 (emphasis added). 110 See Claude, supra note 35, at 437–438. See Chayes and Chayes, supra note 97, at 2–3. For instance, see W. M. Reisman, ‘‘International Lawmaking: A Process of Communication’’ (1981) 75 ASIL Proceedings 101; Henkin, supra note 96 and R. Fisher, Improving Compliance with International Law (Charlottsville, University of Virginia Press, 1981).

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Koskenniemi, have noted, most lawyers and international relations theorists have been, at least until recently, enamoured of the enforcementbased sub-approach.113 This situation has, however, rapidly begun to change. Many influential theories have emerged suggesting that international norms and institutions can generate a high level of ‘‘voluntary compliance pull’’ even in the absence of enforcement. Thomas Franck’s ‘‘legitimacy theory’’; Harold Koh’s ‘‘transnational process’’ theory; Chayes and Chayes’ ‘‘managerial’’ theory; Brunnee and Toope’s ‘‘interactional’’ theory; republican liberal and democratic peace theory; many of the intersubjective transformation theories proposed by constructivists; and the quasi-constructivist theories of scholars like Sikkink, Keck, Risse, Kappen, Ropp, and Finnemore, are all good examples of some of the largely voluntary compliance-based theories that have emerged in the not too distant past. However, even these voluntary compliance-based theories have their limits. Let me explain what I mean.

Blind spots within the compliance-centered approach A logical consequence of the failure to extend analysis beyond the ‘‘compliance model’’ is the widespread absence of a holistic approach to the study of international institutions. Virtually all of these compliancebased theories (whether of the enforcement-based or voluntary compliance-based versions) fail to capture, or capture adequately, the full picture of the domestic promise of these institutions. Much of the evidence of such influence lies beyond the compliance model’s ‘‘radar screen.’’ As Peter Haas put it not too long ago: Much attention has been paid to regime [and institutional] creation and regime [and institutional] maintenance, but few authors have studied . . . their direct effects on national behaviour.114

At around the same time, Robert Keohane had admitted that much less attention had been paid to the impact of international institutions than had been paid to the study of origins or their patterns of development over time.115 Oran Young had before that also made a similar point.116 Happily, however, this blind spot is no longer as extensive as it was when 113 114 115 116

See Brunnee and Toope, supra note 68 and Koskenniemi, supra note 100. See Haas, supra note 65, at 377. See Keohane, supra note 21, at 736–737. See O. Young, ‘‘International Regimes: Toward a New Theory of Institutions’’ (1986) 39 World Politics 104 at 115.

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these comments were made. Peter Haas’ study of the Mediterranean pollution regime, Anne-Marie Slaughter’s studies on the impact of the European courts, Audie Klotz’s study of the impact of the antiApartheid sanctions regime, Kathryn Sikkink’s studies of the domestic impact of international human rights regimes, and similar studies have filled a part of the huge void that previously existed in this connection.117 Nevertheless, even these improved explanatory studies do not tend to frame or consider the question of the impact of an international institution on national behaviour in terms of ‘‘what disadvantaged or aggrieved local social movements or groups can do with international institutions, as resources’’ (a ‘‘bottom up’’ perspective). Rather, they tend to frame and consider the question in terms of ‘‘what these institutions can do for the disadvantaged or oppressed’’ (a much more ‘‘top down’’ perspective). As will become clear in chapters 4 to 7, as well as at the end of section 2.3 of this chapter, the choice of such a ‘‘bottom up’’ or ‘‘top down’’ perspective has extremely important implications for the concept of institutional effectiveness that underlies a particular analysis, and therefore can have severe implications for the holism of that analysis: in terms of what kinds of phenomena and how much of it that the analytical optic is able to capture. In this sense, analyses which concentrate on a view of institutional effectiveness obtained through an optic that merely captures data regarding what an international institution can by itself do for the disadvantaged are wont to miss out on data regarding what the disadvantaged are doing with these international institutions (how they are deploying them) within state institutions. In this section, I have offered an account of the nature and limits of the conventional conceptions of international institutions. What I want to do in the following section is to focus more specifically on conventional conceptions of international human rights institutions (IHIs), and on the problems with these accounts, ending with a discussion of the inability of these conventional accounts to explain fully and adequately what I have, in chapter 1, styled the ‘‘ACHPR phenomenon.’’ 117

See T. Risse and K. Sikkink, ‘‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’’ in T. Risse, S. C. Ropp, and K. Sikkink, The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press, 1999), p. 2; P. M. Hass, ‘‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’’ (1989) 43 International Organisation 377; W. Mattli and Anne-Marie Slaughter, ‘‘Revisiting the Europe Court of Justice’’ (1998) 52 International Organisation 177 at 179.

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2.3 Conventional conceptions of international human rights institutions In this section, I want to deal with the question of the conventional ways in which IHIs have been represented in the relevant literature (the images of these entities that can be found in that literature); what the problems with these representational discourses have been; and the adequacy of the various conventional explanations of the formation, sustenance, and effectiveness of IHIs. While a lot of attention (theoretical and otherwise) is now being paid to the study of IHIs, this has not always been the case, at least with respect to the IR theoretical literature. For a while, international human rights regimes and other IHIs were neglected, most notably, in the IR literature.118 However, John Gerard Ruggie’s 1983 article, Onuf and Peterson’s 1984 intervention, and Jack Donnelly’s 1986 contribution, opened the way to the theoretical consideration of IHIs in the IR literature.119 This neglect has now been virtually reversed. The relevant legal literature has also become quite extensive, providing much evidence for the analysis that is offered in this section.120 118

119

120

See N. G. Onuf and V. S. Peterson, ‘‘Human Rights and International Regimes’’ (1984) 37 Journal of International Affairs 329. See J. G. Ruggie, ‘‘Human Rights and the Future International Community’’ (1983) 112:4 Daedalus 93; N. G. Onuf and V. S. Peterson, supra note 118; J. Donnelly, ‘‘International Human Rights: A Regime Analysis’’ (1986) 40 International Organisation 599; N. H. Samhat, ‘‘Human Rights Regimes and the Emergence of International Political Community’’ (1999) 36 International Politics 503; N. H. Samhat, ‘‘International Regimes as Political Community’’ (1997) 26 Millenium 349; A. Moravcsik, ‘‘The Origins of Human Rights Regimes: Democratic Delegation in Post War Europe’’ (2000) 54 International Organisation 217; A. Moravcsik, ‘‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’’ (1995) 1 European Journal of International Relations 157; A. M. Weisburd, ‘‘Implications of International Theory for the International Law of Human Rights’’ (1999) 38 Columbia Journal of Transnational Law 45; A. Rosas, ‘‘State Sovereignty and Human Rights: Toward a Global Constitutional Project’’ (1995) 43 Political Studies 61; D. P. Forsythe, ‘‘Human Rights in US Foreign Policy: Retrospect and Prospect’’ (1990) 105 Political Science Quarterly 435; and C. Henderson, ‘‘Human Rights and Regimes: A Bibliographical Essay’’ (1988) 10 Human Rights Quarterly 525. For example, see Mutua, infra note 122; McGoldrick, infra note 131; P. Alston, ‘‘The United Nations Human Rights Committee’’ in P. Alston (ed.), The United Nations and Human Rights: A Critical Appraisal (Oxford, Clarendon Press, 2002); H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals (New York, Oxford University Press, 2000); M. Nowak, ‘‘The Effectiveness of the International Covenant on Civil and Political Rights: Stock-taking after the First Eleven Sessions of the United Nations Human Rights Committee’’ (1980) 1 Human Rights Law Journal

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2.3.1 Image of IHIs as weak and ineffectual institutions Most scholars of IHIs, no matter their theoretical orientation, view these entities as some of the weakest kinds of international institutions. These scholars have made very important and plausible arguments regarding the need to strengthen these ‘‘weak’’ institutions. John Ruggie, Andrew Moravcsik, and Brenda Cossman have each described IHIs as institutions properly so called, ‘‘but not terribly strong ones.’’121 Makau Mutua, a leading scholar of international human rights, has himself declared that ‘‘many official international human rights bodies such as the Human Rights Committee (HRC) . . . are basically weak and ineffectual . . . the HRC has been unable to penetrate either the surface or the conscience of most states to meaningfully advance the ICCPR.’’122 Mutua has, quite understandably, also described the UN human rights treaty bodies as having ‘‘a history of infirmity.’’123 Lawrence Helfer and Ann-Marie Slaughter have also made similar remarks. So has Shand Watson. Watson has declared famously that ‘‘the international regime of human rights, if such a thing exists, is notable for its lack of effective

121

122

123

136; L. R. Helfer and A.-M. Slaughter; ‘‘Toward a Theory of Supranational Adjudication, infra note 148; J. S. Watson, Theory and Reality in the International Protection of Human Rights (Ardsley, New York, Transnational Publishers, 1999); L. Henkin and L. Hargrove (eds.), Human Rights: An Agenda for the Next Century (Washington DC, ASIL, 1994); Shelton, supra note 97; Koskenniemi, supra note 67; C. M. Scott (ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford, Hart, 2001); B. Weston and S. Marks (eds.), The Future of International Human Rights (Ardsley, New York, Transnational, 1999); P. R. Baehr, Human Rights: Universality in Practice (New York, St. Martin’s Press, 1999); and T. Evans (ed.), Human Rights Fifty Years On: A Reappraisal (Manchester, Manchester University Press, 1998). See J. G. Ruggie, ‘‘Human Rights and the Future International Community’’ (1983) 112 Daedalus 93 at 103. Andrew Moravcsik has referred to the UN human rights system (a system of IHIs) as ‘‘a notably weak regime.’’ See Moravcsik, supra note 119, at 219. Brenda Cossman has noted that since the ‘‘enforcement machinery’’ of the international human rights system is ‘‘weak,’’ a whole lot of room exists for strengthening its procedures and remedies. See B. Cossman, ‘‘Reform, Revolution, or Retrenchment? International Human Rights in the Post-Cold War Era’’ (1991) 32 Harvard International Law Journal 339 at 340–342. For one of the more recent comprehensive studies of the UN human rights system, see J. Morsink, The Universal Declaration of Human Rights (Philadelphia, University of Philadelphia Press, 1999). See M. wa Mutua, ‘‘Looking Past the Human Rights Committee: An Argument for De-Marginalizing Enforcement’’ (1994) 4 Buffalo Human Rights Law Review 211 at 211–212. Ibid. at 241–245. For a similar view, see M. Mutua, ‘‘Never Again: Questioning the Yugoslav and Rwanda Tribunals’’ (1997) 11 Temple International Law Journal 167 at 182.

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enforcement . . . even in the most notorious and egregious instances.’’124 Similarly, Louis Henkin is convinced that the international human rights system ‘‘has not done well,’’125 while Anne Bayesfky has described them as ‘‘relatively blunt instrument[s].’’126 There is, of course, more than a grain of truth in these unfavorable assessments of the effectiveness and value of IHIs. However, as Koskenniemi has pointed out, these kinds of arguments, based as they usually are, on either an explicit or implied analogy from the nature of domestic legal systems, have dominated the relevant literature for a very long time.127 In fact, Mutua, Helfer and Slaughter, and Cossman (a representative sample) all seem convinced that, for IHIs, ‘‘progress’’ lies in the direction of their becoming even more like domestic courts. These scholars explicitly or impliedly endorse or recommend the transformation of IHIs into some version or other of an international court that ‘‘looks like’’ a domestic court.128 Thus, not only do Cossman, Mutua, and Helfer and Slaughter all seem to share a vision of IHIs as weak, ineffectual institutions, their separate critiques of these institutions are all based on either explicit or implicit analogies to domestic court systems.129 In particular, Slaughter and Helfer explicitly praise the European Court of Justice and the European Court of Human Rights for succeeding in their attempt at making ‘‘their judgments as effective, for the most part, as national court rulings.’’130 That this tendency to use the ‘‘familiar’’ domestic judicial system as a benchmark for understanding and critiquing IHIs is dominant even outside the academic literature is also illustrated (to some extent) by Dominic McGoldrick’s finding that most (not all) members of the Human

124

125

126

127 128 129 130

See J. S. Watson, Theory and Reality in the International Protection of Human Rights (New York, Transnational Publishers, 1999), p. 4. See L. Henkin, ‘‘Preface’’ in L. Henkin and J. H. Hargrove (eds.), Human Rights: An Agenda for the Next Century (Washington, DC, ASIL, 1994), p. vii. See A. F. Bayefsky, ‘‘Making the Human Rights Treaties Work’’ in Henkin and Hargrove, supra note 125, at 238. Reed Brody shares this rather grim view of the value of these institutions. See R. Brody, ‘‘Improving UN Human Rights Structures’’ in Henkin and Hargrove, ibid. at 307; and Jack Donnelly’s overall assessment is not that different. See J. Donnelly, International Human Rights (Boulder, Westview Press, 1993), pp. 12, 79, and 83. See Koskenniemi, supra note 100, at 1954. For example, see ibid. at 237–240. See Helfer and Slaughter, infra note 148, at 345–365. Ibid. at 276 (emphasis added).

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Rights Committee, an important IHI, view that body as a judicial or quasi-judicial body.131 As understandable as this view of IHIs is (especially in the face of the reality of rampant and routine violations of human rights the world over), and as important an optic as it is, it is still a limited perspective on the nature, efficacy and value of IHIs. As Mutua’s brilliant review of Shand Watson’s book on IHIs ably shows, that optic is still quite inadequate as an assessment of, and implied vision for, IHIs.132 This point will become much clearer by the end of this chapter. What I will do now is to consider some of the other major elements that have been at play in the representation of IHIs in the relevant literature. Thereafter, the analysis will turn to a consideration of the adequacy or inadequacy of the explanations that have been offered by the various ‘‘schools’’ for the creation, maintenance, and effectiveness (or impact) of IHIs. Following an extensive discussion of these issues, we will conclude this section with a very brief discussion of the inability of existing theoretical approaches to account for and explain adequately the ‘‘ACHPR phenomenon.’’

2.3.2 Two streams of compliance-centrism in the IHI literature Most scholars of IHIs have to varying degrees been wedded to the compliance-based understanding of the effectiveness of international institutions. This tendency cuts across the various ‘‘schools’’ (with the notable exception of many constructivist theories). For instance, respected human rights scholar, Henry Steiner, has noted that: Institutions make rights more effective by threatening or taking actions that may lead a state to comply. Institutions with real power cut to the bone of sovereignty.133 131

132 133

See D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford, Oxford University Press, 1994), p. 53. See M. Mutua, ‘‘Book Review’’ (2001) 95 American Journal of International Law 255. See H. J. Steiner, ‘‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?’’ in P. Alston and J. Crawford (eds.), The Future of United Nations Treaty Monitoring (Cambridge, Cambridge University Press, 2000), p. 15. For a recent thought-provoking example of the compliance-centered approach, see O. A. Hathaway, ‘‘Do Human Rights Treaties Make a Difference?’’ (2002) 111 Yale Law Journal 1935. But see C. Heyns and F. Viljoen, ‘‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’’ (2001) 23 Human Rights Quarterly 483

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As we have seen already, there are two major kinds or streams of compliance-based approaches. These are (a) enforcement-based approaches, and (b) voluntary compliance-based approaches. These two kinds of ‘‘compliance-centrism’’ will now be considered one after the other. The specific objective here, it must be emphasized, is not to dismiss either kind of compliance-centrism as worthless, but simply to show how dominant they have together been in the IHI literature.

2.3.3 Enforcement-centrism in the IHI literature Despite his own rather obvious tendency to embrace excessively positivist assumptions, Shand Watson has correctly pointed out the centrality of ‘‘enforcement-centrism’’ in the relevant academic and non-academic literature. According to Watson ‘‘what human rights advocates are seeking is a supranational order of the hierarchical, coercive [Austinian] type prevalent in domestic systems to act as a check on governmental malfeasance.’’134 The desire for such a heavily coercive, enforcement-based system by a very large percentage of human rights advocates (both academics and practitioners) is understandable given two factors: the continued pandemism of human rights violations in our world, and the ‘‘incontrovertible reality’’ of the absence of such a supranational coercive governmental regime on the world stage.135 This desire on their part for more and more ‘‘enforcement’’ is easily illustrated. For instance, Donnelly has lamented the fact that ‘‘the basic fact of sovereignty’’136 has posed a huge obstacle to the UN human rights system’s capacity to acquire ‘‘significant enforcement powers,’’137 the implication being that the acquisition of such powers of enforcement is in fact an irreducible minimum requirement for success. Many other scholars share this commitment to the enforcement model.138 Deserving of more extensive reproduction is Beth Stephens view that:

134

135 136 138

(arguing that IHIs have not had their greatest impact within states as a result of coercing or cajoling state compliance). See J. S. Watson, ‘‘Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law’’ (1979) University of Illinois Law Forum 609. See Onuf and Peterson, supra note 118, at 334. See Donnelly, supra note 126, at 12. 137 Ibid. at 58. For example, Anne Bayefsky is even more convinced of the centrality of enforcement or coercion as the key to producing state compliance with the norms and goals of IHIs. In her view ‘‘surely it is not surprising that, at bottom, tying economic interests to

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Enforcement . . . remains the Achilles’ heel of the human rights system. In practice rights are frequently violated and remedies rarely available . . . the remedy ‘‘deficit’’ remains despite the remarkable growth of multinational [i.e. IHI], state, and nongovernmental institutions scrutinizing human rights practices and attempting to enforce human rights norms.139

And Dinah Shelton has declared her commitment to promoting ‘‘effective enforcement.’’140 Again, the obvious implication is that in their drive to secure the compliance of states, IHIs are best served by coercive measures that then compel states to comply. Lawrence Helfer and Anne-Marie Slaughter have proposed a model for understanding effective supranational adjudication that seems to be caught in between the ‘‘enforcement-centric’’ and ‘‘voluntary compliance-centric’’ sub-approaches.141 For example, they suggest that the European Court of Human Rights has witnessed its rulings change the shape of domestic law,142 and are of the firm view that ‘‘effective adjudication’’ depends on: a court’s basic ability to compel or cajole compliance with its judgments. In the supranational context, effective adjudication depends on a supranational tribunal’s ability to secure such compliance by convincing domestic governmental institutions, directly and through pressure from private litigants, to use their power on its behalf.143

This theory does not at first sight appear to be all that enforcementcentric, until it is realized that the ‘‘enforcement’’ or ‘‘coercion’’ that is, in their view, necessary to make supranational adjudication effective is sourced from the relevant ‘‘domestic governmental institutions.’’144 As such, even though some ‘‘non-coercive’’ or gentler pressure may sometimes be involved, in the end, their model leans much more on the side of ‘‘enforcement’’ as the principal route for securing compliance, and thus for ensuring IHI effectiveness. They have asserted that the power of a court to compel compliance with its ‘‘summons to appear’’ and its decisions is the linchpin of effective adjudication.145 They have also noted that:

139

140

141 143 144

improving human rights protection is the only message [that those she has styled] rejectionists are likely to understand.’’ See Bayefsky, supra note 126, at 265. See B. Stephens, ‘‘Book Review’’ (2001) 95 American Journal of International Law 257 (emphasis added). See D. Shelton, Remedies in International Human Rights Law (New York, Oxford University Press, 1999), p. 37. See Helfer and Slaughter, infra note 148, at 290–291. 142 Ibid. at 293. Ibid. at 278 (emphasis added). Ibid. at 290 (here she makes this point explicit). 145 Ibid. at 283–284.

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Supplementing and surrounding this core of potential coercion, however, is the power of legitimacy: a court’s ability to command acceptance and support from the community so as to render force unnecessary.146

From the above tour d’horizon, it is clear that many respected scholars still hold on in varying degrees to the measurement of enforcement as the primary or most important way of understanding the efficacy and value of IHIs. It may also be clear to the reader that there is some validity to the arguments of the scholars that have adopted this optic. After all, human rights violations have not been eliminated from our world, and the exponential growth in the numbers of the IHIs that operate in that world has not in itself led to a remarkable decline in the frequency of such violations. However, as important as the enforcement-centered optic is, and as brilliant as the arguments of many of its exponents have been, as a number of scholars have convincingly demonstrated, the argument that the application of coercive measures is the best way to secure correspondence between IHI norms and goals, on the one hand, and the nature of social relations within relevant state(s), on the other hand, remains unconvincing when assessed from a broader, much more holistic perspective.147 Moreover, this view is largely based on a dogged fidelity to the transferability to the international plane of our supposedly much more ‘‘effective’’ domestic legal orders; an attitude that I shall refer to as the ‘‘domestic analogy.’’ For instance, Helfer and Slaughter have praised the European Court of Human Rights on the basis that its decisions are ‘‘as effective, for the most part, as national court rulings,’’148 and dismissed most international tribunals, including IHIs, as substantially less effective than domestic courts when viewed from the optic of the nature of the operations of the same domestic courts!149 They have also largely dismissed the work of those scholars who have resisted the domestic analogy, such as Louis Henkin, Thomas Franck, and Harold Koh, 146 147

148

149

Ibid. at 284 (emphasis added). See Chayes and Chayes, supra note 89, at 2; Brunnee and Toope, supra note 68, at 48–50; and P. Burns and O. C. Okafor, ‘‘The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or How it is Still Better to Light a Candle than to Curse the Darkness’’ (1998) 9 Otago Law Review 399 at 410, see generally 403–427. See L. R. Helfer and A. Slaughter, ‘‘Toward a Theory of Effective Supranational Adjudication’’ (1997) 107 Yale Law Journal 273 at 276. Ibid. at 285.

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accusing them of ‘‘dodging’’ the question of the supposed ineffectiveness of international tribunals, including IHIs.150 As a result of the hold that the domestic analogy has had on the imagination of so many scholars, far less attention has in fact been paid to the study of the kinds of ‘‘correspondence’’ that are induce-able largely outside the compliance framework (below the compliance radar, as it were). I will return to these two points later on in this section and elsewhere in this book.

2.3.4 Voluntary compliance-centrism in the IHI literature The presence of this phenomenon in the literature is symbolized by Richard Bilder’s vision of the role of international courts.151 Eschewing the enforcement-centrism that is so endemic in the literature, he sees such courts as most useful in the role of ‘‘persuading states to comply with their human rights obligations.’’152 Jack Donnelly is convinced that ‘‘a very strong regional human rights regime exists for the members of the Council of Europe,’’153 and has also declared that ‘‘[w]hether we consider scope, depth, or impact, the European Human Rights Regime is unprecedented.’’154 This conclusion is based on a voluntary compliance-centric approach to the evaluation of IHIs. That much is palpable from the following passage: The decisions of the European Commission and the Court, and the general guidance provided by the European Convention, have had a considerable impact in a number of states. For example, detention practices have been altered in Belgium, Germany, Greece, and Italy. The treatment of aliens has been changed in the Netherlands and Switzerland. Press freedom legislation was altered in Britain. Wiretapping regulations have been changed in Switzerland. Legal aid practices have been revised in Italy and Denmark. Procedures to speed trials have been implemented in Italy, the Netherlands, and Sweden.155

Thus, Donnelly’s very favorable assessment of the European system is hinged on the demonstrated capacity of that system to generate

150 151

152

Ibid. at 286–287. See R. B. Bilder, ‘‘Possibilities for Development of New International Judicial Mechanisms’’ in L. Henkin and J. L. Hargrove (eds.), Human Rights: An Agenda for the Next Century (Washington DC, ASIL, 1994), p. 317. Ibid. at 327. 153 See Donnelly, supra note 126, at 82. 154 Ibid. 155 Ibid. at 83.

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mostly non-coerced or voluntary compliance. It is also on this basis that he returns a much less favourable assessment of the InterAmerican human rights system.156 In a similar way, Dominic McGoldrick’s assessment of the individual petition and state reporting mechanisms of the UN Human Rights Committee is steeped in the voluntary compliance sub-model.157 It is almost entirely confined to an attempt to measure how much non-coerced compliance with the norms or goals of the two mechanisms has been registered.158 The voluntary compliance-centered type of analysis is in fact as widespread in the literature as the enforcement-centered type.159

2.3.5 General absence of holism in much of the IHI literature The voluntary compliance-centered approach, a vast improvement on the coercive enforcement-centered approach, is not wrong as such, only incomplete. It is in fact a useful device when not used exclusively. I have myself used that approach (as part of a broader analytical framework) in a fairly recent paper co-authored with Peter Burns.160 Used in and of itself, it lacks the range and depth of perspective necessary to observe and capture the kind of ‘‘correspondence’’ that can occur largely beyond the compliance-oriented radar. Yet such correspondence may in fact represent an IHI’s most significant influence within the relevant state. Dinah Shelton’s recent recognition that ‘‘effectiveness is the question whether the goals of the norm [or institution] are achieved, and may be 156

157 159

160

Ibid. at 86. For a similarly voluntary compliance-based assessment, see Donnelly, supra note 119, at 609–610. See McGoldrick, supra note 131, at 98–104 and 202–204. 158 Ibid. For other instances of the use of this kind of analytical optic in the relevant literature, see Alford, supra note 24, at 160; C. Harland, ‘‘The Status of the International Covenant on Civil and Political Rights (ICCPR) in the Domestic Law of States Parties: An Initial Global Survey through UN Human Rights Committee Documents’’ (2000) 22 Human Rights Quarterly 187; M. Bulterman and M. Kuijer (eds.), Compliance with Judgements of International Courts (The Hague, Martinus Nijhoff, 1996), pp. 50–51; M. Nowak, ‘‘The Effectiveness of the International Covenant on Civil and Political Rights: Stocktaking after the First Eleven Sessions of the UN Human Rights Committee’’ (1980) 1 Human Rights Law Journal 136; N. Burrows, ‘‘Monitoring Compliance of International Standards relating to Human Rights: The Experience of the United Nations Commission on the Status of Women’’ (1984) 31 Netherlands International Law Review 332 at 336–337; and D. Fischer, ‘‘Reporting under the Covenant on Civil and Political Rights: The First Five Years of the Human Rights Committee’’ (1982) 76 American Journal of International Law 142. See Burns and Okafor, supra note 147.

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independent of compliance’’161 is as correct as it is rare to find in the relevant literature.162 Hinting at the phenomenon of ‘‘correspondencebeyond-compliance,’’ Makau Mutua has also asserted, quite correctly I must say, that: Contrary to what Watson suggests, the spread and effectiveness of human rights norms are not best assessed through the lens of international enforcement. Instead, one should look at the dramatic and transformative impact of human rights norms on the legal, constitutional, and political cultures of states. The true test of effectiveness is not at the vertical level – that is, where international institutions act on domestic legal orders – but rather in the assimilation and adoption of human rights norms by and within states. Seen from this perspective, human rights norms have had an almost miraculous impact on the psyches of states, cultures, and societies around the world.163

This point will be addressed more fully in chapters 4, 5, 6, and 7. Suffice it at this stage to hint that the failure to focus on, and take account of, such significant ‘‘correspondence’’ as lies beyond the compliance radar might account for the inability of much of the theoretical literature to explain such unusual cases of correspondence as the ‘‘ACHPR phenomenon.’’

2.3.6 State-centrism, positivism, and over-emphasis of ‘‘the international plane’’ As has already been shown, with the notable exception of constructivists and republican liberals, most theories on the creation, maintenance, or 161

162

163

See D. Shelton, ‘‘Law, Non-Law and the Problem of ‘Soft Law’’’ in D. Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (New York, Oxford University Press, 2000), p. 2 at 5. Richard Bilder had hinted at this point when he urged that rather than focus on ‘‘how to make states behave’’ (a compliance-based approach and optic), we ought to be focusing on ‘‘how to encourage states to cooperate’’ (an approach that is not necessarily grounded in the compliance model, voluntary or otherwise). See Bilder, supra note 96, at 65. In his critique of Shand Watson’s dismissive discussion of the international human rights regime, Makau Mutua has asserted that the former’s theses are fatally flawed principally because in choosing to focus almost exclusively on ‘‘enforcement’’ as such ‘‘Watson fails to address the penetration of the idea of human rights within almost all states, and he does not take into account the implications of such penetration for the cultural, political, and historical legitimacy of human rights.’’ See Mutua, supra note 132, at 255. Ibid.

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impact of international institutions have historically been state-centered. From realists to neo-liberals, relatively very little attention was paid historically by the relevant theoretical optics to the role of sub-national actors. It was assumed, for the most part, that states were the primary actors in almost every situation of international cooperation.164 As we have seen already, this situation has now changed substantially, however. Non-state actors can now be observed taking their rightful place in many of the various analytical studies of international institutions. This transformation has been even more pronounced with respect to the specifically IHI literature. Indeed, most of the scholars that I just referred to (as important advocates of the turn to non-state actors) are IHI scholars. It is fair to state, then, that the pitfall of state-centrism (if it can be referred to in this way) has not been as prevalent in the IHI literature as in the more general literature on international institutions. A similar conclusion can be reached in regard to the twin pitfalls of excessive positivism, and over-emphasis of the impact of IHIs on a state’s behaviour on the international (as opposed to its internal) plane. While the specifically IHI literature has not escaped these two ‘‘sins’’ totally and completely, that literature has been far less guilty than the more general international relations and legal literature. This could not have been otherwise, since the IHI literature is specifically focused on the (re-) orientation of the internal conduct of states toward their own citizens, a focus that forces IHI scholars to pay attention to non-state actors, the character of domestic social relations, and the role of norms, ideas, and knowledge in international and domestic politics. Thus, if the IHI literature has not produced an adequate explanation of the ‘‘ACHPR phenomenon,’’ it is not principally because it is guilty of any of the three ‘‘sins’’ mentioned in this section of the chapter.

2.3.7 Excessive focus on institutional architecture, capacity, and efficiency The literature on IHIs too frequently views these entities as some kind of a panacea to the problem of human rights violations in our world. This vision of IHIs can usually be gleaned from the lamentations that riddle the relevant literature regarding the failure of these institutions to rid the world of human rights violations. For instance, Menno Kamminga has lamented the fact that the European system has never really responded 164

See Krasner, infra note 172, at 141.

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adequately to gross and systematic violations of human rights.165 This vision of IHIs can also be gleaned from the ways in which scholars couch their assessments of IHIs. For instance, Dominic McGoldrick has correctly noted that the ‘‘independence’’ of the independent experts who are supposed to constitute the monitoring wing of an IHI is essential to the effectiveness of that IHI.166 This is in fact true. But an emphasis on this point without more seems to suggest a conviction that, more often than not, the primary reason for the effectiveness or ineffectiveness of an IHI is related to its institutional architecture, composition, or capacity (as opposed to how that institution is deployed by other (usually non-state) actors within states). An important consequence of this kind of imagination of the nature and purpose of IHIs is that the literature usually turns almost exclusively to reform or revitalization of the institutional architecture, capacity, or efficiency of these entities (what I will refer to as ‘‘institutional reform’’) as the primary solution to the perceived ‘‘weakness,’’ or ‘‘ineffectiveness,’’ of these entities (their so-called failure to rid the world of major human rights abuses). This is evident in the discussions about this matter in much of the literature.167 A surfeit of admittedly thoughtful proposals for the reform of the architecture, capacity, and efficiency of most IHIs now exists.168 There is a sense of excessive optimism in all of this, a sense that if only this institution or that mechanism were well designed, or this or that institution existed, we would see a dramatic reduction in the frequency of human rights abuses. There is a sense that the most important question to ask is what an IHI can do for the oppressed, and not what the oppressed can do with an IHI (as a resource to be deployed creatively within domestic institutions). And even those who don’t focus on institutional reform as the answer, also 165

166 167

168

See M. Kamminga, ‘‘Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?’’ (1994) 2 Netherlands Quarterly of Human Rights 153. See McGoldrick, supra note 131, at 198. For example, see Baehr, supra note 120; B. H. Weston and S. P. Marks (eds.), The Future of International Human Rights: Commemorating the 50th Anniversary of the Universal Declaration of Human Rights (Ardsley, New York, Transnational, 1999); and Evans, supra note 120. For example, see the separate but uniformly important proposals put forward by Craig Scott and Makau Mutua. See C. M. Scott, ‘‘Towards the Institutional Integration of the Core Human Rights Treaties’’ in V. Oosterveld and I. Merali (eds.), Reaching Beyond Words: Giving Meaning to Economic, Social and Cultural Rights (Philadelphia, University of Philadelphia Press, 2001); and Mutua, supra note 122, at 237–240.

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over-emphasize the role of ‘‘international’’ or ‘‘transnational’’ actors in the human rights transformations that are taking place within states.169 As we shall soon see, this kind of error can impose important cognitive limitations on their analytical optics and tools. While this kind of optimism is not entirely misplaced, and while we are all guilty of it to varying extents, it is somewhat mistaken nevertheless for human rights advocates to found so much of their hopes for the eventual effectiveness of IHIs on the ‘‘institutional reform of these IHIs’’ as such.170 This is so for a number of reasons, the most immediately relevant being that most IHIs have tended to be physically and logistically inaccessible (at least in a direct sense) to most of the impoverished or ordinary people who tend to need them the most. Indeed, many accomplished scholars of IHIs have made similar points.171 In the circumstances, our hopes for the eventual triumph of IHI norms and goals must mostly lie outside the institutional reform context. For, after all, the vast majority of institutional reform proposals or projects are aimed at enhancing the compliance record of the relevant IHI. Yet, in view of the fact that most victims of human rights will as a practical matter never be able to access an IHI, it seems sensible to suppose that even if states comply all of the time with IHI norms or decisions, it will not principally be because of the nature of the relevant institution’s architecture, or capacity, or its level of efficiency, but because of other factors, including the extent to which IHI norms, decisions, or goals can be creatively and usefully deployed by victims or by the social movements which operate within domestic orders and against state institutions. We will return to this idea in chapters 4 to 7. I will now turn to a discussion of the adequacy or otherwise of conventional explanations of the creation, maintenance, and impact (or effectiveness) of IHIs. Our main focus will, however, be on the adequacy of the various theoretical or other attempts by the various relevant ‘‘schools’’ to explain the impact of IHIs within states. Following 169 170

171

For example, see Risse and Sikkink, supra note 117, at 5. See M. Mutua, ‘‘Hope and Despair for a New South Africa: The Limits of Rights Discourse’’ (1997) 10 Harvard Human Rights Law Journal 63 at 68 (his major argument concerns rights discourse, but an analogy can be drawn between the limits of ‘‘rights’’ and the limits of IHIs). For example, see R. Goodman and D. Jinks, ‘‘Measuring the Effects of Human Rights Treaties’’ (2003) 14 European Journal of International Law 171 at 177 n. 26; and C. Heyns and F. Viljoen, ‘‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’’ (2001) 23 Human Rights Quarterly 483 at 520–521.

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this discussion, I will turn my attention to a brief and very preliminary discussion of the inability of these ‘‘schools’’ to explain adequately what I have termed the ‘‘ACHPR phenomenon’’; a discussion that will foreshadow a fuller examination of that problematic in chapter 7.

2.3.8 Realism and the effectiveness of IHIs As has already been discussed in section 2.2 of this chapter, realist approaches to the study of IHIs hold that these entities are created to promote ‘‘the interests of particular powerful actors.’’172 This realist theory of regime creation and maintenance is quite similar at the core to the realist theory of regime impact or effectiveness. In the realist view, it is only when powerful states have enforced principles and norms that international human rights regimes have been consequential.173 However, as Andrew Moravcsik has explained at different times, the realist explanation of IHI creation, maintenance, and effectiveness is highly problematic.174 In his view, realism has failed to explain the effectiveness of the European human rights system, which did not develop or acquire a high level of effectiveness principally because of the presence or the assertiveness of a regional hegemon or the projection of power by a number of strong states.175 Basically, these realist theories hardly begin to account for the influence of relatively weak IHIs or international regimes on relatively strong or powerful states. For instance, Kristin Rosendal has shown that the realist perspective, focused as it on ‘‘power,’’ ‘‘would hardly have predicted the mitigating effects of the bio-regime [i.e. regime of the Convention on Biodiversity].’’176 No wonder then that even Krasner himself has observed that, while he is convinced that realism is ‘‘the right first cut’’ for

172

173 174

175 176

See S. Krasner, ‘‘Sovereignty, Regimes, and Human Rights’’ in V. Rittberger (ed.), Regime Theory and International Relations (Oxford, Clarendon Press, 1993), p. 140. Ibid. at 141. See A. Moravcsik, ‘‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’’ (1995) 1 European Journal of International Relations 157. For a similar set of arguments, see A. Moravcsik, ‘‘Postwar,’’ supra note 119. For an earlier version of this last paper, see A. Moravcsik, Explaining the Emergence of Human Rights Regimes: Liberal Democracy and Political Uncertainty in Postwar Europe (Weatherhead Center for International Affairs Working Paper Series, Paper No. 98–17, 1998). Moravcsik, ‘‘Postwar,’’ supra note 119 at 158 and 184. See G. K. Rosendal, ‘‘Impacts of Overlapping International Regimes: The Case of Biodiversity’’ (2001) 7 Global Governance 95 at 112.

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understanding IHIs, he is not at all convinced that it is ‘‘the last cut.’’177 Even this may be an understatement.

2.3.9 Neo-liberalism and the effectiveness of IHIs As has already been discussed in section 2.2, to neo-liberals, IHIs are best conceived of in instrumentally rationalistic terms. IHIs are ‘‘tools for states’ pursuit of their self-interest, [and are] created and maintained in response to international demand for rules governing mutually beneficial international transactions.’’178 Accordingly, a neo-liberal would not expect to observe IHI effectiveness except in a context in which a critical mass of states actors realize that an effective IHI would serve their best interests. Whatever the merits of this approach to the understanding of the effectiveness of IHIs, it does not seem to provide an adequate explanation for either the creation or maintenance of IHIs. If regimes are created or sustained only when the relevant states actors perceive it to be in their rational self-interest, respectively, then very few IHIs would exist today! Since the goals of IHIs are usually to encourage states to adopt policies, norms, and ideas, that states which act as neo-liberal rational selfinterested egotists will all-too-often perceive as against their national self-interest, therein lies part of the problem with the neo-liberal explanations of regime creation, maintenance and effectiveness. Again, as neo-liberals would not expect to observe IHI effectiveness in the absence of the institutional convergence of the self-interests of a number of rational egotistic states actors who perceive that the participation in the IHI and adherence to IHI norms and goals would allow all of them to move to the ‘‘Pareto frontier,’’ it is hardly an adequate explanation for IHI effectiveness. As Moravcsik has demonstrated, the effectiveness of the European human rights system, widely perceived as the most effective of all IHIs, cannot be explained adequately on this basis.179 It cannot be explained adequately as the result of reciprocally satisfying bargaining among states which all view IHI norms and goals as in their self-interest. Indeed, were the rational (cost-benefit) pursuit of self-interest to be the most important reason why states adhere to IHI norms and implement

177 178 179

See Krasner, supra note 172, at 167. See Clark, supra note 89, at 510–511. See Moravcsik, supra note 41, at 158–159 and 184.

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institutional goals, the European system would never have gotten off the ground!

2.3.10 Republican liberalism and the effectiveness of IHIs As has been explained already, as espoused mostly by Andrew Moravcsik,180 the republican liberal approach to the study of IHIs, which is close to liberal democratic peace theories,181 closely embraces the sub-national analytic method,182 and argues that the most important factor defining the opportunities for and constraints on international cooperation is the level of convergence of national preferences, which in turn reflects the demands of those domestic groups represented by the state. Thus, to these scholars, effective international regimes (or institutions) are likely to emerge only where they have deep roots in the functional demands of groups in domestic or transnational society as represented by the domestic political institutions that mediate between society and the state. Institutions foster compliance with international norms not by altering the external incentives facing a unitary state but by altering the domestic incentives facing societal groups and politicians, thereby shifting the domestic coalitions that define state preferences.183 To them, the European human rights system is by far the most effective IHI, and its unique success has not been in transforming undemocratic domestic regimes, but in improving already democratic ones. It is those countries in which individuals, groups, or governments wish to use IHIs to strengthen their already democratic systems which benefit the most from these IHIs. Basically, the way this works is that civil society groups, an independent judiciary, and influential public opinion converge domestically in favour of the section of the political elite which (whether it is in or out of power) wants to maintain or improve the weakly or newly democratized character of the relevant state. As such, as happened 180 181

182

183

Ibid. I refer to that theory as it is espoused by Slaughter and Benvenisti. See A. Slaughter, ‘‘International Law in a World of Liberal States’’ (1995) 6 European Journal of International Law 503; and Benvenisti, supra note 89, at 168–169. For examples of the espousal or use of this kind of analytic optic, see W. Mattli and A. Slaughter, ‘‘Europe before the Court: A Political Theory of Legal Integration’’ (1993) 47 International Organisation 41 at 43; W. Mattli and A. Slaughter, ‘‘Re-visiting the European Court of Justice’’ (1998) International Organisation 177 at 179; Keohane and Martin, supra note 23, at 48; and Benvenisti, supra note 89, at 169. See A. Moravcsik, ‘‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’’ (1995) 1 European Journal of International Relations 157 at 158.

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in Europe, the states that are most committed to the emergence of IHIs have not, in general, been the governments of, or transnational groups based in, established democracies (as the ideational accounts of some liberals and the quasi-constructivists, such as Sikkink, suggest), or the great powers and the most powerful states (as realists would suggest), but the governments of newly established democracies.184 In fact, the long established democracies often allied with ‘‘dictatorships’’ and ‘‘transitional regimes’’ in opposing effective reciprocally binding human rights enforcement systems; a fact that is largely ignored and left unexplained in what Moravcsik refers to as the ‘‘ideational’’ literature.185 However, as we shall soon see, whatever the merits of this theory in explaining what is (according to their own thesis) a modest role for IHIs in the human rights transformation in Europe, the theory is inadequate as an explanation of the ‘‘ACHPR phenomenon.’’ This is principally because Moravcsik lacks a theoretical explanation for the exertion of IHI influence on military or other kinds of dictatorial states. His theory is limited to the explanation of the modest transformation of newly established or weaker democracies. I will return to this point more fully in chapter 7, but suffice it to make two points. The first is that Moravcsik does not stress or accord pride of place in his theory to capturing and explaining the kinds of ‘‘correspondence’’ that occur outside the ‘‘compliance’’ framework. His expressed admiration for the European system is based principally on the very high level of compliance to its norms and goals (which he quantifies and places at 90 percent).186 The second point is that his theory seems to consume itself when pushed beyond its narrow European grounding; it seems to contend that IHIs really can’t exert that much independent impact: since IHIs function best in countries that are democratic already (even if newly or weakly democratic), IHIs seem to be of extremely modest worth at best and at worst inconsequential. By this logic, if the European marvel is to guide us, IHIs are almost doomed to fail when applied to dictatorial or undemocratic states, since by their own admission, IHIs can only markedly affect states that have a measure of (even if weak) democracy. Of course Moravcsik admits that directing IHIs at dictatorships is not necessarily futile, but he insists that the ‘‘ideal’’ if unique success of the European system was

184 186

See Moravcsik, ‘‘Postwar,’’ supra note 119, at 219–220. 185 Ibid. See Moravcsik, ‘‘Western Europe,’’ supra note 119, at 170–171.

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achieved principally because of the efforts of existing but weak democracies. Thus, the message is clear – don’t expect European style IHIs (i.e. what he considers as ‘‘effective IHIs’’) in places where there are no weak democracies (in which certain national elites are desirous of consolidating democracy). Therefore, according to this optic, given the fact that many African countries, particularly Nigeria, were dictatorships during most of the time when the African system has had some significant, albeit modest, influence within its institutions, we ought not to expect to find the ‘‘ACHPR phenomenon’’ at all. We ought not to expect to find that the ACHPR has had even a modest impact within the Nigeria of the relevant era.

2.3.11 Constructivism and the effectiveness of IHIs As has already been explained, according to constructivists, international institutions are created and sustained primarily, or at least importantly, because of the role of ideas, knowledge, and norms. Once created, institutions (framed as they are by norms, ideas, and goals) contribute to the shaping and reshaping of the self-understandings and conceptions of interests held by states. As such, international institutions are likely to be most effective over time where they are most likely to contribute meaningfully to the social (re)construction of the self-understandings and conceptions of ‘‘interests’’ held by states (and sub-state actors). Thus, in the constructivist view, we can expect to find effective institutions where institutions have been successful at shaping the preferences, interests, and power of states and other institutional actors in ways that conduce to institutional goals. Historically, the key limitation of this theoretical approach was (a) its failure to explain in an adequate way how exactly ideational, knowledgebased, and normative transformations occurred, and (b) what exactly the role of rationality was in such processes. Considerable, though only partly successful, attempts have now been made within this school to remedy these two problems.

2.3.12 Quasi-constructivism and the effectiveness of IHIs Being constructivists themselves, quasi-constructivists generally accept the notion so fundamental to constructivism that, not only are ideas, knowledge, and norms powerful, these factors play a fundamental role

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in international cooperation.187 Like other constructivists, they stress the ‘‘power’’ of norms and institutions, and affirm that material factors are not the only factors that shape international politics.188 For instance, Sikkink has stressed the shared values or principled ideas that primarily drive international ‘‘issue-networks’’ working to bring about change within domestic orders (via transformation of logics of appropriateness).189 They want, as well, to take constructivism one step further by iterating and explaining exactly how ideas and norms can have an impact on international politics; a great service to us all which had been rendered only rarely before. They also seek to specify the conditions under which norms and ideas can transform prevalent thinking and practices within states.190 Additionally, quasi-constructionists have also adopted the so-called liberal ‘‘disaggregated state’’ model analytical optic (as opposed to the ‘‘unitary state actor’’ model previously favored in the older literature), enabling them to pay a great deal of attention to the critical roles of nonstate and sub-state actors in the success of international institutions.191 These non-state actors include those that have been styled ‘‘principled issue networks’’ (PINs), ‘‘advocacy networks’’ (ADNs), and ‘‘transnational advocacy networks’’ (TANs) by these scholars.192 Sikkink has noted how these actors/networks help spur action at every stage of the process of transforming international human rights norms and IHI goals into domestic understandings and practices.193 Importantly, they have also used elements of the rationalist approach, e.g. the rational ‘‘ends-means’’ calculations that Finnemore and Sikkink regard as important to the calculations of the relevant sub-national and state actors involved in the promotion of the goals and norms of the IHI

187

188

189 190 192

193

For example, see M. E. Keck and K. Sikkink, Activists Beyond Borders (Ithaca, Cornell University Press, 1998), pp. 1–16; and K. Sikkink, ‘‘Codes of Conduct for Transnational Corporations: The Case of the WHO/UNICEF Code’’ (1986) 40 International Organisation 815. See Risse and Sikkink, supra note 117, at 6 (asserting that the book is part of a growing literature on the impact of norms and ideas in international politics). See Sikkink, supra note 90, at 412 and 416. See Keck and Sikkink, supra note 187, at 16–29. 191 Ibid. at 5. The term ‘‘PINs’’ was first used by Sikkink in an early article. See Sikkink, supra note 90. The second term was used by Risse and Sikkink. See Risse and Sikkink, supra note 117, at 5. The third term was used by Margaret Keck and K. Sikkink. See Keck and Sikkink, Activists Beyond Borders (Ithaca, Cornell University Press, 1998), p. 1. See Sikkink, supra note 90, at 417 and 439.

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(in what they refer to as strategic social construction).194 Risse and Sikkink have also used a kind of rationalistic analysis to supplement their largely ‘‘liberal’’ constructivist account of the processes through which international human rights norms are socialized into domestic practices.195 So have Keck and Sikkink who, even while steeped in the constructivist language of norms, social relations, and inter-subjective understandings, have used the rationalist language of constraints, strategies, institutions, and rules.196 They even view TANs as simultaneously ‘‘principled’’ and ‘‘strategic’’ actors.197And these last two scholars admit that TANs often employ ‘‘coercive’’ strategies (such as arm-twisting and the encouragement of sanctions) against a target state.198 In the end, most quasi-constructivists (as well as most other kinds of constructivists) will agree with Sikkink’s theory of IHI effectiveness and worth. According to her: The [international issue] networks [made up of private Western charities, local and international NGOs and IHIs] were influential within states because they contributed to a reformulation in the understandings of national interest [and thus of ‘‘human rights discourse’’] at times when traditional understandings of sovereignty and national interest were called into question by changing global events.199

Thus, quasi-constructivists see clearly the possibility of the occurrence of ‘‘correspondence’’ of a kind that is not easily accommodated within the ‘‘compliance-based’’ analytical optic, and which lies beyond its radar. This is the kind of phenomenon that Mutua has hinted about in his review of Shand Watson’s book on IHIs, and about which Peter Burns and the present author had theorized in an earlier paper.200

2.3.13 The ‘‘ACHPR phenomenon’’ as a modest challenge to most theories on the effectiveness of IHIs: a brief introduction The nature of this phenomenon, and evidence to support its existence, will be elaborated upon in chapters 4, 5, 6, and 7. However, it is 194

195 196 199 200

See M. Finnemore and K. Sikkink, ‘‘International Norm Dynamics and Political Change’’ (1998) 52 International Organisation 887 at 910. See also, Checkel, supra note 13, at 2. See Risse and Sikkink, supra note 117, at 5 and 11–17. See Keck and Sikkink, supra note 187, at 4–5. 197 Ibid. at 2. 198 Ibid. at 16. See Sikkink, supra note 90, at 437 (emphasis added). See Mutua, supra note 132; Burns and Okafor, supra note 147, at 410.

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appropriate at this stage to offer an insight into its nature. As briefly described in chapter 1, the ACHPR phenomenon stands for the modest yet significant level of subtle influence that the African system (which is widely regarded as the weakest IHI) has exerted within Nigeria and South Africa, and to a more limited extent, in a few other African states, largely outside the purview of the compliance-centred paradigm. As we have seen, of the theories discussed in this chapter, realism, neo-realism, and neo-liberalism are too far away from explaining it that it does not make sense to reiterate them here. The major reason why the republican liberals cannot adequately explain the ACHPR phenomenon is that that theory (at least as ably developed by Moravcsik) seems to have confined itself to explaining the impact of an IHI within already (if newly/weakly) democratized states, and as such does not really have any plausible explanation for significant IHI impact within a dictatorship. This theoretical school has also focused far too much on attempting to ‘‘measure’’ state compliance with IHI ‘‘edicts.’’ Conventional constructivism all but explains this phenomenon in a complete sense. With more attention to the roles that local activist forces can play in ensuring IHI effectiveness, conventional constructivism would offer a more adequate account of the ACHPR phenomenon. The process via which an IHI (in this case the African system) which is widely viewed as relatively ‘‘weak’’ has exerted a modest but significant level of influence within a number of discrete domestic institutions of a relatively ‘‘strong’’ state such as Nigeria, largely in partnership with the activist forces that operate locally, cannot be adequately explained without centering those local actors in the account that is offered. Conventional constructivism has also not paid sufficient attention to the specification of the exact ways in which the more rational endsmeans calculations interact with the more ideational pursuits to produce the observed transformations. Nevertheless, as constructivism all but completely explains the ACHPR phenomenon, the explanation for that phenomenon that I offer in this book is a broadly constructivist one. Even though quasi-constructivism, especially of the Kathryn Sikkink kind, more adequately explains the ACHPR phenomenon, this explanatory model can still be built upon by the evidence adduced in this book. The quasi-constructivist model can still be reinforced by certain insights that the data adduced in this book suggests. Those insights include: (a) the critical importance or significance of the leadership of the ‘‘issue networks’’ or ‘‘advocacy networks’’ (which often serve as the engines

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for the processes through which IHIs exert domestic influence) by local (as opposed to foreign or ‘‘international’’) activist forces; (b) the fact that the role which coercive pressure has played in producing the transformations in the domestic thinking and practice that are discussed in this book is, more often than not, not all that great. This is particularly important in the key Nigerian and South African cases. While pressure can and often does achieve some results in such cases, coercion in itself has not been particularly critical in the key Nigerian and South African cases. Very little real coercive pressure was put on Nigeria’s military during the relevant period. Such coercion as was exerted was limited to relatively soft sanctions, such as the denials of visas to some officials on some occasions and closure of one or two diplomatic missions. As I have already noted, I will return to these points more fully in chapter 7.

2.4 Summary of the arguments This chapter has been concerned with a number of related questions. It has been concerned with understanding the nature of the conventional approaches to the study and evaluation of both international institutions in general, and IHIs in particular. It has also been concerned with some of the blind spots that many of these conventional approaches to the study and evaluation of IHIs exhibit. It was suggested in the chapter that many of these approaches tend to focus on the measurement of state compliance as the focal point of their evaluation of IHIs. As such, these approaches have tended to miss important insights regarding the worth of IHIs within states. It was also suggested that having missed these important insights, many conventional IHI theories have also offered inadequate accounts of the capacity of this genre of institutions to affect thinking and action within the domestic institutions of state actors. Of all the schools of IHI theory, only the constructivists (especially their quasi-constructivist wing) have offered theoretical arguments that are likely to explain to a large extent the ability of IHIs to generate the kinds of valuable effects within states that cannot be adequately explained as incidences of state compliance. This is, therefore, the school that has the best chance of explaining adequately these incidences of ‘‘correspondence.’’ The discussion undertaken in this chapter is crucial to the development of the book’s overall argument that the African system has, beyond

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the realm of the compliance optic, been able to generate a modest measure of valuable ‘‘correspondence’’ within Nigeria and certain other African states. This chapter is also critical to the development of the other argument made in the book, that the occurrence of this ‘‘ACHPR phenomenon’’ has important implications not just for the fuller and more adequate understanding of the character and worth of IHIs, but also for the orientation of the optics through which scholars evaluate the capacity of these institutions to affect domestic thought and action. This chapter makes clear the nature of the various conventional approaches to IHIs, alluding, therefore, to their various strengths and deficiencies.

3 Conventional conceptions of the African system for the promotion and protection of human and peoples’ rights1 3.1 Introduction What I want to do in this chapter is to show that the African system has been imagined in very similar ways as other IHIs. First, I want to show that in their attempt to understand this system, most commentators have viewed it (or one or the other of its component entities) as (a) particularly weak and ineffectual, and (b) as dysfunctional in the sense that it has not served as a panacea to Africa’s human rights problems. Secondly, I want to show also that most commentators have viewed the textual/organizational reform of the African system not merely as important, but as the key, to the success of the system. And finally, I want to show that the relevant body of scholarship has, for the most part, either been overly ‘‘enforcement-centred’’ or excessively focused on the 1

Hereinafter referred to as ‘‘the African system.’’ This system has been correctly described by Dinah Shelton as ‘‘the youngest of the regional systems’’ and as a body that was created by and functions within the broad framework of the Organization of African Unity (now the ‘‘African Union’’). See D. Shelton, Remedies in International Human Rights Law (New York, Oxford University Press, 1999), p. 13. For general discussions of the history, nature, or achievements of the African system, see R. Murray, Human Rights in Africa: From the OAU to the AU (Cambridge, Cambridge University Press, 2004); M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights: The System at Work (Cambridge, Cambridge University Press, 2002); R. Murray, The African Commission on Human and Peoples’ Rights and International Law (Oxford, Hart Publishing, 2000), p. 29; see M. wa Mutua, ‘‘The African Human Rights System in a Comparative Perspective’’ (1993) 3 Review of the African Commission on Human and Peoples’ Rights 5 at 11; C. E. Welch, Jr., ‘‘The African Commission on Human and Peoples’ Rights: A Five Year Report and Assessment’’ (1992) 14 Human Rights Quarterly 43; E. A. Ankumah, The African Commission on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1996); B. O. Okere, ‘‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems’’ (1984) 6 Human Rights Quarterly 141; C. A. Odinkalu, ‘‘The Individual Complaints Procedure of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’’ (1998) 8 Transnational Law and Contemporary Problems 359; R. Chongwe, ‘‘African Charter on Human and Peoples’

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‘‘voluntary compliance’’ analytical framework. As has been noted already, this assessment of the conventional approaches does not imply that the state compliance optic is wrong in itself. Rather, it is intended to underscore its conceptual incompleteness and the necessity for its enlargement and expansion. What will be suggested is that there is a need to reach beyond – while retaining – the state compliance-focused optic. Having already considered in chapter 2, the various approaches to the study of IHIs more generally, and having concluded that the constructivist approach best serves our purposes in this book, that whole discussion will not be repeated here. This chapter is thus dedicated to another discrete link in the overall argument made in the book. It is also important to emphasize, though, that my chief concerns in this book in general, and in this chapter in particular, do not relate to a description or analysis as such of the nature and mechanics of the African system. Where I refer to the nature or workings of this system, I do so as a way of illustrating some of the conceptual points that I want to develop. This chapter has been organized into nine sections (the present one included). In section 3.2, I present a brief overview of the nature of the African system. Although the primary focus of this book is hardly doctrinal or organizational, this discussion is presented as a background for those readers who are not already well acquainted with the African system. In section 3.3, I map and discuss the nature of the dominant conception of the African system (or of its components) as weak and ineffectual. In section 3.4, I map and discuss the dominance of the imagination of this IHI as a potential panacea. In section 3.5, I map Rights’’ (1997) 13 Commonwealth Law Bulletin 1605; P. Takirambudde, ‘‘Six Years of the African Charter on Human and Peoples’ Rights: An Assessment’’ (1994) 7 Lesotho Law Journal 35; S. Neff, ‘‘Human Rights in Africa: Thoughts on the African Charter on Human and Peoples’ Rights in the Light of Case Law from Botswana, Lesotho and Swaziland’’ (1984) 33 International and Comparative Law Quarterly 331; K. A. Acheampong, ‘‘The African Charter and the Equalization of Human Rights’’ (1994) 7 Lesotho Law Journal 21; C. M. Peter, ‘‘The Proposed African Court of Justice: Jurisprudential, Procedural, and Enforcement Problems and Beyond’’ (1993) 1 East African Journal of Peace and Human Rights 117; O. Ojo and A. Sesay, ‘‘The OAU and Human Rights: Prospects for the 1980s and Beyond’’ (1986) 8 Human Rights Quarterly 89; and B. G. Ramcharan, ‘‘The Travaux Preparatoires of the African Commission on Human and Peoples’ Rights’’ (1992) 13 Human Rights Law Journal 307. For excellent discussions of the nature and potential of the newly established, but as yet non-functional, court, see M. Mutua, ‘‘The African Human Rights Court: A TwoLegged Stool?’’ (1999) 21 Human Rights Quarterly 342; Murray, Human Rights in Africa, supra; and A. Lloyd and R. Murray, ‘‘Institutions with Responsibility for Human Rights Protection under the African Human Rights System’’ (2004) 48 Journal of African Law 165.

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and discuss the ways in which the dominant stream of the relevant bodies of scholarship imagines that textual and/or organizational reforms are the key to the effectiveness, and thus success, of the African system. In sections 3.6 and 3.7, I conduct analytical expositions of the ways in which the relevant literature has been either overly enforcement- or compliance-centric, respectively. The critique here will relate to the excess of the attention that has almost always been paid to enforcement or compliance, to the exclusion of the kinds of correspondence that lie beyond the compliance radar. In section 3.8, I offer an overview of the conventional evaluative models which have been used to assess the worth of the African system. In section 3.9, I attempt, albeit briefly, to expose (in a preliminary way) the conceptual and practical inadequacies of these conventional evaluative models. Section 3.10 will consist of a summary of the arguments advanced in this chapter.

3.2 A brief overview of the African system Although the African system has its intellectual origins in, and owes the impetus for its formation chiefly to, the many human rights ideas and struggles that took place within African states in the colonial (pre-1957) and post-independence (post-1960s) eras,2 it was not until 27 June 1981 that the African Charter on Human and Peoples’ Rights, the principal constitutive document of the system, was adopted.3 And it was not until 1986 that this treaty entered into force and thus became legally binding in a formal sense.4 Furthermore, it was not until the following year that the system became institutionally functional. It was in that year that the African Commission on Human and Peoples’ Rights was established.5 An African Court of Human and Peoples’ Rights was added to the system by the subsequent adoption and entry into force of a related treaty in 1998 and 2004, respectively.6 Thus, as has been noted already in 2

3 4 5

6

See M. Mutua, ‘‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’’ (1995) 35 Virginia Journal of International Law 339 at 346–364. See the African Charter on Human and Peoples’ Rights, 1981 (1982) 58 ILM 21. See Mutua, supra note 2, at 339–340. Hereinafter referred to as the ‘‘Commission.’’ This Commission was established under article 30 of the Charter. See Murray, Human Rights in Africa, supra note 1, at 1–49. Hereinafter referred to as the ‘‘Court.’’ For the text of this treaty, see Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as the ‘‘Protocol’’), available at www.achpr.org/english/_info/court_en.html.

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chapter 1, although other human rights treaties such as the African Charter on the Rights of the Child do exist and are in force on the African continent,7 the core of the African system is the system which is made up of the African Charter on Human and Peoples’ Rights (the ‘‘Charter’’), which has been in force since 1986;8 the African Commission on Human and Peoples’ Rights (the ‘‘Commission’’); and the African Court on Human and Peoples’ Rights (the ‘‘Court’’). In general, the Charter allows for the filing of communications by its states parties, as well as by individuals, groups of individuals, NGOs, and other such entities.9 The Charter is remarkable for its generous provisions with regard to the enjoyment of standing to appear before the Commission.10 Almost any registered NGO or other entity (African or foreign) can bring a petition to it without first of all proving that that entity is in fact the aggrieved party.11 The Charter makes provision for a variety of human rights obligations: rights as well as duties;12 economic and social rights as well as civil and political rights;13 individual rights as well as group rights;14 and so-called first/second generation as well as third generation rights.15 The Commission consists of eleven members who are supposed to be ‘‘chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience.’’16 The Commission has both a promotional and a protective mandate.17 In the exercise of its protective mandate, it tends to function like a quasijudicial body. Its decisions are, however, formally non-binding. It was to add an organ with formal binding power to the African system that the treaty on the establishment of a Court was adopted. However, although

7

8 9

10 12 14 16

OAU Doc. CAB/LEG/24.9/49 (1990), available at www.africa-union.org/Official_documents/ Treaties_%20Conventions_%20Protocols/A.%20C.%20ON%20THE%20RIGHT%20AND %20WELF%20OF%20CHILD.pdf. This treaty was adopted in 1990 and entered into force in 1999. It makes provision, inter alia, for the establishment of an African Committee of Experts on the Rights and Welfare of the Child. Hereinafter referred to as the ‘‘Charter.’’ See C. A. Odinkalu, ‘‘The Individual Complaints Procedure of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’’ (1998) 8 Transnational Law and Contemporary Problems 359 at 369–374. Ibid. at 378–379. 11 See article 55 of the Charter. See articles 27–29 of the Charter. 13 See articles 15–18 of the Charter. See articles 20–24 of the Charter. 15 See articles 21–23 of the Charter. See article 31 of the Charter. 17 See article 45 of the Charter.

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this last treaty has been in force since 2004, the Court has only just been physically established. When fully functional, it will have the power to hear cases filed by states parties to its constitutive treaty, by African intergovernmental organizations, and by the Commission.18 It may, on a case-by-case basis, also allow individuals and those NGOs that have been conferred with observer status before the Commission to essentially skip the Commission and bring cases directly to it.19 On the whole, the African system (that is, the Charter, Commission, and Court) is an integral part of the new African Union which has now replaced the old Organization for African Unity. The African system was, however, also an integral part of the old Organization of African Unity.20

3.3 Conceptions of the African system as weak and ineffectual The virtual consensus in both the mainstream and non-mainstream literature is that the African system (and each of its component entities) is ‘‘weak’’ and ‘‘ineffectual.’’ In fact, the use of the ‘‘W’’ and ‘‘I’’ words in describing the system as a whole, as well as the Charter, the Commission, and the Court, has become a sort of organizing thematic among most scholarly observers of the workings of the system. Just as almost every commentator on the workings of the European human rights system has praised it in superlative terms, almost every commentator has (perhaps understandably) described the African system in terms of the ‘‘W’’ word or the ‘‘I’’ word. At the outset, a few key examples will suffice to illustrate this point. Henry Steiner and Phillip Alston, two of the most important international human rights scholars, captured the prevailing sentiment in the literature when they declared boldly that ‘‘the newest, the least developed or effective . . . the most controversial of the three established regional human rights regimes involve African states [i.e. the African system].’’21 Jack Donnelly, another very important human rights scholar, has echoed this understanding of the system as a whole. In his view, ‘‘fears raised by the language in which the norms of the Banjul Charter are specified would seem to be confirmed by its relatively weak

18 20 21

See article 5(1) of the Protocol. 19 See article 5(3) of the Protocol. See Murray, Human Rights in Africa, supra note 1. See H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals (New York, Oxford University Press, 2000), p. 920 (emphasis added).

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implementation provisions.’’22 This liberal use of the ‘‘W’’ and ‘‘I’’ words to describe the African system as a whole also extends to the imagination of it components, i.e. the Charter, the Commission and, now, the Court.23 I will now survey the relevant literature in order to demonstrate this point more extensively. I will examine, seriatim, the literature’s use of these terms in relation to the Charter, the Commission, and the Court. Before engaging in that discussion, it is important to emphasize that the critical point to bear in mind here is that both those who describe the African system (or any of its components) as weak, and those who assess it as the weakest of all IHIs have, all-too-often, reached their various conclusions on the basis of their shared, if problematic, commitment to a compliance-centred test of IHI worth/value. According to this paradigm, IHIs are as effective as the rate at which they are able to coerce or cajole state compliance with their decisions or norms.

3.3.1 On the supposed weakness of the Charter In his oft-cited consideration of the work of the Commission over the first five years of that body’s existence, Claude Welch felt able to declare, quite correctly in my view, that ‘‘commentators on the Banjul Charter have tended to stress its shortcomings.’’24 This account of the nature and attitude of the literature is as accurate today as it was when Welch published the extant article in 1993.25 That this tendency is extremely dominant in the literature, even among very well meaning commentators, is evidenced in part by Welch’s own description of the Charter. In his own words: The armature of human rights protection provided . . . regionally by the Banjul Charter, are far weaker than in Western European states, and 22

23

24 25

See J. Donnelly, International Human Rights (Boulder, Westview Press, 1993), pp. 91–92. For a much more recent reiteration of this kind of assessment of the African system by my former doctoral student, see S. C. Agbakwa, ‘‘Reclaiming Humanity: Economic, Social, and Cultural Rights as the Cornerstone of African Human Rights’’ (2002) 5 Yale Human Rights and Development Law Journal 177 at 193–195. See Welch, supra note 1, at 46. In fact, at first Amnesty International had deliberately refused to make references to provisions of the Charter as the basis of its communications to that body on the basis that doing so would legitimize the weak textual provisions of that instrument. The African Commission found this attitude of Amnesty to be rather disrespectful. See Ankumah, supra note 1, at 59.

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significantly weaker than in most western hemisphere countries [i.e. including North and Latin America] that have ratified their respective regional conventions.26

Welch’s view of the Charter is similar to those expressed by other important commentators on the African system such as Obinna Okere (my own former teacher and colleague), Emmanuel Bello, Richard Gittleman, and Gino Naldi. In comparing the African Charter to its regional counterparts, Okere once described it as ‘‘modest in its objectives and flexible in its means.’’27 But even this measured, if poetic, description of the Charter is perhaps the most enthusiastic of the first wave of reviews that heralded the adoption of that document. For his own part, Emmanuel Bello has decried the Charter as ridden with ‘‘claw back clauses.’’28 Gittleman has described it as ‘‘woefully deficient,’’ especially with regard to its specification of the right to liberty;29 and Naldi, one of the African human rights system’s keenest students, has consistently assessed the Charter in less than favourable terms.30 While most of these rather grim descriptions of the Charter are not lacking in some factual basis, the truth is that these criticisms are often more or less overstated. The glass of the African system has too often been seen as half-empty rather than as half full. For instance, Bello and others are correct when they argue that the Charter contains a number of ‘‘claw back clauses,’’ but note that the Charter also lacks a general derogation clause (the absence of which the Commission has interpreted to imply that the Charter would still apply as it is even in a state of emergency).31 In this sense, the claw back clauses mirror in effect the conventional international treaty format, and even such derogation

26 28

29

30

31

See Welch, supra note 1. 27 See Okere, supra note 1, at 158. See E. Bello, ‘‘The Mandate of the African Commission on Human and Peoples’ Rights’’ (1988) 1 African Journal of International Law 31 at 55. See R. Gittleman, ‘‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’’ (1981–82) 22 Virginia Journal of International Law 667 at 694. For the latest re-affirmation of his, on balance, less than favourable appraisal of the system as a whole, see G. Naldi, ‘‘Reparations in the Practice of the African Commission on Human and Peoples’ Rights’’ (2001) 14 Leiden Journal of International Law 681. For a recent call to scholars to ‘‘overcome the triple barriers of pessimism, history, and ideology’’ in order to more meaningfully discuss and appraise aspects of the Charter, see C. A. Odinkalu, ‘‘Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights under the African Charter on Human and Peoples’ Rights’’ (2001) 23 Human Rights Quarterly 327. Gittleman, supra note 29, at 691–692.

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clauses as the ‘‘notwithstanding clause’’ under the Canadian Charter of Rights and Freedoms. Again, Rachel Murray, a close and keen observer of the African system, is not wrong when she expresses the view that the wording of the Charter is sometimes unclear.32 To his credit, Chidi Odinkalu (perhaps the most prolific commentator on the Charter) has noted in support of Murray’s point that ‘‘foremost among the problems that the Commission has encountered is the very text of the African Charter itself, which like the Rules of Procedure, is opaque and difficult to interpret.’’33 Note, however, that the nature of the Charter’s wording does not, in fact, seem to have severely affected the Commission’s activist interpretation of its provisions. (The reasons for characterizing the Commission’s interpretations as activist are developed fully in section 3.7.) Again, Evelyn Ankumah is correct to note that the provision in the Charter requiring potential claimants to first exhaust domestic remedies before approaching the Commission seems stricter than equivalent provisions in other similar treaties.34 Note, however, that as Ankumah herself acknowledges,35 the Commission has, in practice, adopted a much more liberal approach to the exhaustion of domestic remedies. The text has not been determinative in this regard. And lastly, Kivutha Kibwana is correct in observing that the Charter is inappropriately couched in masculine language.36 Note, though, that this charge is also applicable to virtually every other international human rights instrument, including the European Convention on Human Rights. It seems as well that the force of many (not all) of the factual premises upon which the prevailing imagination of the Charter as a ‘‘weak’’ instrument are based is severely weakened by the manner in which the Commission has eventually interpreted these textual provisions. As Chidi Odinkalu has recently shown,37 it seems that the Commission has for the most part adhered to Ankumah’s suggestion that ‘‘the weak provisions in the Charter should be dealt with in the same way as the weak provisions in other regional treaties have been dealt with: through 32

33 35 36

37

See R. Murray, ‘‘Serious or Massive Violations under the African Charter on Human and Peoples’ Rights: A Comparison with the Inter-American and European Mechanisms’’ (1999) 17 Netherlands Quarterly of Human Rights 109 at 127. See Odinkalu, supra note 1, at 406. 34 See Ankumah, supra note 1, at 67. Ibid. at 68. See K. Kibwana, ‘‘Empowering the African Woman: A Study of the Protection of Women’s Rights under the African Charter on Human and Peoples’ Rights and a Proposal Regarding the Development of a Charter on the Rights of the African Woman’’ (1995) 5 Review of the African Commission on Human and Peoples’ Rights 1 at 7. See Odinkalu, supra note 1, at 390–392.

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a creative and dynamic usage of the treaty.’’38 Welch had in fact recognized this liberal activist interpretive stance of the Commission quite early on in the Commission’s life.39

3.3.2 On the supposed weakness of the Commission Just as the component parts of the relevant literature are virtually unanimous in concluding that the Charter is ‘‘weak,’’ a similar level of consensus exists in the same body of scholarship regarding the supposed weakness of the African Commission. What I want to do in this subsection is to map this near consensus. Joe Oloka-Onyango, one of the most brilliant and important African scholars of our times, has confirmed this consensus. He has correctly noted that: Unfortunately, even the most positive reviews of the performance of the major mechanism of implementation of the Charter, the African Commission on Human and Peoples’ Rights, generally agree that the institution has performed at less than par.40

Oloka-Onyango largely attributes this way of imagining the Commission to the obvious funding problems that have militated against the success of the Commission; the questions that have been raised regarding the perceived independence and commitment of some members of that body; and the low level of state compliance with their reporting obligations.41 For his own part, Abdelsalam Mohamed has noted that ‘‘the African Commission has been apparently weak in promoting, protecting, and implementing the Charter provisions.’’42 While he does not offer as much evidence as he could for this broad conclusion, he notably relies on what he sees as the Commission’s inability to deal effectively with the most egregious human rights situations.43 Chidi Odinkalu is of the view that the Commission has been much weaker than it could 38 40

41 42

43

See Ankumah, supra note 1, at 60. 39 See Welch supra note 1, at 49. See J. Oloka-Onyango, ‘‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’’ (2000) 6 Buffalo Human Rights Law Review 39 at 70. See also J. Oloka-Onyango, ‘‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa’’ (1995) 26 California Western International Law Journal 1 at 52. Ibid. at 70–71. See A. A. R. Mohamed, ‘‘Article 58 of the African Charter on Human and Peoples’ Rights: A Legal Analysis and How it Can be Put into More Practical Use’’ (1996) ASICL Proceedings 290 (emphasis added). Ibid. at 304–305.

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be.44 Odinkalu bases this conclusion on facts such as the financial and human resource problems faced by the Commission; its refusal in at least one case to consider a petition merely because it was written in ‘‘insulting’’ language; and the under-capacitated and under-utilized nature of the Commission.45 For her part, Ankumah has noted that the Commission’s decisions have all too often not been supported by clear and persuasive reasoning;46 that its guidelines on state reports are problematic;47 that many of the reports filed by states have been inadequate;48 and that the Commission has not been able to get states to comply with its requests to these states to supply supplementary or other information.49 Claude Welch’s description of the Commission as weak has also been based on similar grounds.50 Welch has also noted that the Commission’s interpretations of the Charter’s confidentiality requirements were initially too strict;51 and that the Commission is, at least in formal terms, subordinate to a political organ of the Organization of African Unity (OAU).52 The Commission’s weakness has also been viewed as stemming in part from the fact of its inequitable gender composition, especially in its early years.53 Indeed, although it is presently chaired by a woman and has at least four female members, its first woman member, Vera Duarte of Cape Verde, took her seat in its seventh year of operation, and at its Fourteenth Session.54 All of the foregoing issues, as well as a number of others, have been emphasized as well by Rachel Murray,55 and by a host of other commentators.56 44 46 49 52 54 55

56

See Odinkalu, supra note 1, at 389–390 and 406–411. 45 Ibid. See Ankumah, supra note 1, at 40. 47 Ibid. at 87. 48 Ibid. at 92. Ibid. at 109. 50 See Welch, supra note 1, at 54–55. 51 Ibid. at 55. Ibid. at 47. 53 See Beyani, infra note 56, at 303. See 14 African Commission Report (1993), p. 1. See R. Murray, ‘‘Decisions of the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights’’ (1997) 46 International and Comparative Studies Quarterly 412 at 414. See also R. Murray, ‘‘On-Site Visits by the African Commission on Human and Peoples’ Rights: A Case Study and Comparison with the Inter-American Commission on Human Rights’’ (1999) 11 African Journal of International and Comparative Law 460 at 463–464 and 473. See S. Gutto, ICJ Workshops on NGO Participation in the African Commission on Human and Peoples’ Rights: A Critical Evaluation (Geneva, ICJ, 1996), pp. 14–16, and ‘‘NonGovernmental Organizations, Peoples’ Participation, and the African Commission on Human and Peoples’ Rights: Emerging Challenges to Regional Protection of Human Rights’’ in B. Andreassen and T. Swineheart (eds.), Human Rights in Developing Countries, 1991 Yearbook (Oslo, Scandinavian University Press, 1992), pp. 40–42; U. Essien, ‘‘The African Commission: Eleven Years After’’ (2000) 6 Buffalo Human Rights Law Review 93 at 94 and 97–99; U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1997), pp. 67–73; F. D. Gaer, ‘‘First

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While most of these statements regarding the specific weaknesses of the Commission are generally factual, the seriousness of these deficiencies is all- too-often overstated. This will become clear at the end of section 3.7.

3.3.3 On the supposed potential weakness of the emergent Court Just as a virtual consensus exists in the literature regarding the perceived weakness of the Charter and the Commission, a similar level of consensus already exists in the relevant body of scholarship regarding the supposed potential weakness of the newly established African Court. What I want to do in this sub-section is to map this near consensus, and thereafter to comment briefly on the strength of the assumptions upon which this consensus is founded. I will illustrate this consensus by referring to the work of a few scholars only. For his part, the distinguished human rights scholar Makau Mutua has come to the considered conclusion that the weaknesses that have impeded the success of the Charter and the Commission, most of which have been mentioned above, are also likely to affect negatively the performance of the Court, unless the Charter is revised to eliminate these weaknesses.57 Rachel Murray, another leading scholar, broadly agrees with this conclusion. In her view, the Court will be beset by the same sorts of resource problems which have confronted the Commission, given the paucity of resources available to its parent body, the OAU.58 Oloka-Onyango is convinced as well that the court will be plagued by the same sorts of problems that have so far impeded the work of the other entities that compose the African system.59 Nsongurua Udombana would definitely agree.60

57 58 59 60

Fruits: Reporting by States under the African Charter on Human and Peoples’ Rights’’ (1992)10 Netherlands Quarterly on Human Rights 29 at 29–31; F. Korley, ‘‘The Role of Human Rights Institutions in the Promotion and Protection of Human Rights in Africa: A Ghanaian Appraisal’’ (1998) 10 ASICL Proceedings 199 at 200; F. Butegwa, ‘‘Using the African Charter on Human and Peoples’ Rights to Secure Women’s Access to Land in Africa’’ in R. J. Cook (ed.), Human Rights of Women: National and International Perspectives (Philadelphia, University of Pennsylvania Press, 1994), p. 495 at 504 and 506; C. Beyani, ‘‘Toward a More Effective Guarantee of Women’s Rights in African Human Rights System’’ in Cook, ibid. 285 at 303; and W. Benedek, ‘‘The African Charter and Commission on Human and Peoples’ Rights: How to Make it More Effective’’ (1993) 11 Netherlands Quarterly of Human Rights 25 at 28–32. See Mutua, ‘‘Two-Legged Stool,’’ supra note 1, at 358–361. See Murray, International Law, supra note 1, at 29. See Oloka-Onyango, ‘‘Human Rights,’’ supra note 40, at 71. See N. J. Udombana, ‘‘Toward the African Court on Human and Peoples’ Rights: Better Late Than Never’’ (2000) 3 Yale Human Rights and Development Law Journal 45.

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It is difficult to fault this line of reasoning. If it is true that the success of the already functional components of the system has been impeded by certain problems and weaknesses, then it seems likely that, as an integral part of that system, the Court is unlikely to escape the negative effects of these same problems. However, this model of assessment assumes that the Court’s eventual success or failure will for the most part depend on what the Court itself does or can do, as opposed to how it is creatively deployed within domestic orders by activists or other agents. This conventional model can, as I have set out to show in this book, be complemented by an enlarged model that reaches beyond its limits without abandoning it. This will become clearer in chapter 7.

3.4 Conceptions of the ideal African system as a panacea What I want to do, albeit in a relatively brief way, is to demonstrate that observers of the African system have all-too-often imagined its ideal form in terms of a sort of panacea for the serious human rights problems which trouble many parts of the African continent. Indeed, Rachael Murray captured this tendency when she critiques what she sees as the ways in which the establishment of the Court has for long been ‘‘proferred as the panacea’’ for the human rights problems which occur on the African continent.61 Again, due to space limitations, I shall limit the discussion here to some of the instances in which this kind of overly idealistic conception of the optimal kind of African system (or one of its components) has been expressed. C. R. M. Dlamini imagines the adoption of the African Charter as an attempt to stem the tide of human rights violations in Africa.62 This view of the objective and potential of the Charter seems at a level to imply or assume that the adoption of even the most ideal type of human rights charter can itself stem the tide of human rights violations in Africa, and places too much faith in a text as panacea. George Mugwanya has, for his part, urged the African system to strive to improve the human rights situation on the African continent, but does so in terms that seem to suggest that the system can in fact do so largely because of its own efforts, i.e. what the system itself does or 61 62

See Murray, ‘‘Decisions of the African Commission,’’ supra note 55, at 434. See C. R. M. Dlamini, ‘‘Toward a Regional Protection of Human Rights in Africa: The African Charter on Human and Peoples’ Rights’’ (1991) 24 Comparative and International Law Journal of Southern Africa 189.

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can do.63 In a similar vein, Amnesty International has observed that ‘‘eleven years after it came into existence, . . . the Commission . . . struggles to address the serious and massive violations of human rights that continue [throughout] the length and breadth of the [African] continent.’’64 This passage obviously betrays an implied expectation that the Commission itself ought to have somehow adequately addressed the serious human rights problems which occur in certain African states. Udombana is convinced that ‘‘the Commission, however, has proved manifestly incapable of protecting the basic human rights of Africans.’’65 This statement betrays a conception of the function of an ideal Commission as the key institution that protects the human rights of Africans, and as an institution which rises or falls largely based on its own efforts (as opposed to how civil society or other agents deploy it within domestic settings). Given the nature of the sources of major human rights violations in Africa as in the rest of the world; given the nature of our present international system; and given the many inherent limitations of international institutions in general and IHIs in particular, conceptions of the African system which give the impression that an ideal African system could possibly serve as a panacea for the serious human rights violations that afflict many places and persons on the African continent are seriously flawed, and may not provide us with an adequate optic with which to evaluate the actual performance of the African system. IHIs such as the African system are hardly designed to serve, or inherently capable of serving, as panaceas for human rights violations. They in fact have a much more important role – one that will be clear by chapter 8.

3.5 Conceptions of the textual or organizational reform of the African system as the key to its success Concomitant with the imagination of the ideal kind of African system as one that can, almost in and of itself, serve as a panacea for the human 63

64

65

See G. Mugwanya, ‘‘Realizing Universal Human Rights Norms through Regional Human Rights Mechanisms: Reinvigorating the African System’’ (1999) 10 Indiana International and Comparative Law Review 35 at 42. See Amnesty International, ‘‘Credibility in Question: Proposals for Improving the Efficiency and Effectiveness of the African Commission on Human and Peoples’ Rights,’’ AI Index: IOR 63/02/98 at 3 (Internet copy on file with the author) (emphasis added). See Udombana, supra note 60, at 63.

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rights challenges faced by Africans, is a conception of the reform of the text of the Charter, and/or the reform of the architecture or organizational arrangements of the Commission and the Court, as the key to the achievement of that system’s ultimate potential, however conceived. It is not unusual at all that a description of the perceived weaknesses of the Charter is followed almost immediately by the expression of a firm belief that the solution to the problems posed by these weaknesses is the amendment of the Charter. This conception of the system is in fact very common in the relevant literature, and a representative survey of that body of writing will serve to illustrate this point. Such a tendency has also been palpable in the writings of Wolfgang Benedek.66 Benedek’s solution to the perceived inadequacy of the Charter’s fair trial provisions is the adoption of a new binding ‘‘Protocol’’ (as opposed to a continued reliance on the Commission’s resolution on the matter that had expanded the reach of that provision).67 Julia Harrington has endorsed calls for the amendment of the Charter via the instrumentality of the adoption of an ‘‘Additional Protocol’’ concerning the rights of African women.68 Similar calls for the amendment of the Charter as the key to ensuring its effectiveness, i.e. similar calls for such textual reform, have been made by a number of other scholars.69 In a similar vein, Amnesty International has called on the Commission to implement a very detailed set of organizational reforms as a key way of becoming an effective institution.70 Amnesty in fact went further to recommend specific ways of improving the working methods of the Commission’s Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions.71 Odinkalu has also offered a set of detailed recommendations for the institutional reform of the Commission.72 Mohamed has called on the Commission to develop a special procedure 66 68

69 70 71

72

See Benedek, supra note 56. 67 Ibid. at 26. See J. Harrington, ‘‘The African Commission on Human and Peoples’ Rights’’ in K. D. Askin and D. M. Koenig (eds.), Women and International Human Rights Law (Ardsley, New York, Transnational, 1999), p. 460. See Korley, supra note 56, at 200. See Amnesty International, supra note 64, at 4–28. See Amnesty International, ‘‘African Commission on Human and Peoples’ Rights: The Role of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,’’ Doc. IOR 63/005/1997, 1 November 1997, 1–17 (on file with the author). See C. A. Odinkalu, ‘‘Proposals for Review of the Rules of Procedure of the African Commission of Human and Peoples’ Rights’’ (1993) 15 Human Rights Quarterly 533 at 534–547.

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for dealing with serious or massive violations of human rights, as well as emergencies.73 Felice Gaer has suggested a number of changes to the state reporting mechanism of the Commission.74 Abdallah Saffari and Ebow Bondzie-Simpson have respectively offered a number of often very detailed proposals for the improvement of the organizational effectiveness of the Charter and/or Commission.75 Now, because most of these calls for either textual or organizational reform are not, of course, without some factual basis, they are most understandable. Scholars have pointed out a whole basket of textual or organizational problems that are thought to militate against the success of the African system. For instance, Claude Welch has rightly bemoaned the absence of a (functioning) human rights court within the African system.76 Odinkalu has correctly pointed out that, like the members of other IHIs, the members of the Commission are elected in ways that do not always inspire confidence in their credibility and independence,77 and noted as well that the Commission seems to suffer from a ‘‘capacity deficit.’’78 Astrid Danielson and Gerd Oberleitner have argued that the strengthening (reform) of the Secretariat which serves the Commission is ‘‘still the key factor in improving the work of the Commission.’’79 The Commission itself seems to share this view. For example, at its Twelfth Session, the Chair of the Commission: expressed concern about the shortcomings in the Secretariat and said that as long as the Secretariat could not carry out its responsibilities the

73

74 75

76 77 79

See A. A. R. Mohamed, ‘‘Article 58 of the African Charter on Human and Peoples’ Rights: A Legal Analysis and How it Can be Put into More Practical Use’’ (1996) 8 ASICL Proceedings 290 at 301–302 and 305–307. See Gaer, supra note 56, at 34–42. See A. Saffari, ‘‘The Enforcement of Human Rights in Africa with reference to Tanzania’’ (1999) 8 Review of the African Commission on Human and Peoples’ Rights 291 at 303; and E. Bondzie-Simpson, ‘‘A Critique of the African Charter on Human and Peoples’ Rights’’ (1988) 31 Howard Law Journal 643. For another example of this tendency, see G. Oberleitner, ‘‘African Commission on Human and Peoples’ Rights’’ (1995) 13 Netherlands Quarterly of Human Rights 476. See Welch supra note 1, at 47. See Odinkalu, supra note 1, at 366–367. 78 Ibid. at 409. See A. Danielsen and G. Oberleitner, ‘‘16th Session of the African Commission on Human and Peoples’ Rights’’ (1995) 13 Netherlands Quarterly of Human Rights 80 at 83 (emphasis added). See also T. Yirgu, ‘‘The African Commission on Human and Peoples’ Rights: Achievements and Prospects’’ in M. C. Bassiouni and Z. Motala (eds.), The Protection of Human Rights in African Criminal Proceedings (Dordrecht, Kluwer Academic Publishers, 1995), p. 65.

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African Commission would not be able to accomplish its [overall] objectives effectively.80

Again, Christina Murray has impugned Article 18 of the Charter as likely, on balance, to work against the interests of African women;81 and Ankumah has argued that the requirement that the Assembly of Heads of State and Government of the OAU approve the publicization of the ‘‘measures’’ taken by the Commission against a state party to the Charter ‘‘undermines the effectiveness of the Commission.’’82 Yet, the considerable force of most of these arguments in favour of the textual and/or organizational reform of the African system, or one of its components, is almost always weakened (though not rendered irrelevant) by the considerable emphasis that they place on the bare text of the Charter. Most of the arguments for the textual reform of the Charter either do not take as seriously as they could the ‘‘living meaning’’ of the Charter (in terms of the creative ways in which the Commission has authoritatively interpreted that document). As Odinkalu himself has rightly observed in response to the tendency in the literature to advocate the reform of the Charter’s provisions: One response to the perceived textual shortcomings of the Charter is the suggestion for a ‘‘revision of the African Charter.’’ But there is no guarantee that a revision of the Charter would necessarily result in a document that affords greater or better human rights protection. The Commission has tried with substantial success to address these shortcomings through its practice, evolving procedures, and jurisprudence.83

3.6 Enforcement-centrism in the conventional conceptions of the African system Many observers of the African system have tended to imagine that system’s supposed weakness as somehow due, for the most part, to its lack of the power to enforce its own decisions. As such, the bulk of the relevant literature has almost always decried the system’s supposed lack of ‘‘teeth,’’ and/or called for the establishment of a human rights court within the system as a

80 81

82

See 12 African Commission Reports (1992), p. 1. See C. Murray, ‘‘Democracy, the Family and the African Charter on Human and Peoples’ Rights’’ (1992) 4 ASICL Proceedings 187 at 198. See Ankumah, supra note 1, at 24–25. 83 See Odinkalu, supra note 9, at 406.

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way of affording the necessary ‘‘bite’’ to the system.84 Indeed, such scholars tend to see the absence of such a court within the system as the most important source of the supposed ineffectiveness of the system overall.85 That this tendency to view and assess the African system through an enforcement-centred optic is dominant in the literature is palpable from Udombana’s declaration that a consensus exists among the observers of the African system that it needs a court so as to ‘‘give the Banjul [i.e. African] Charter some teeth.’’86 The widespread nature of this consensus can easily be illustrated. For instance, echoing this dominant tendency, Udombana himself has described the African Commission, the oversight machinery of the system, as a ‘‘toothless bulldog.’’87 Naldi and Magliveras have argued that the absence of a court within the African system has meant that the system has rested on ‘‘shaky foundations.’’88 Makau Mutua has himself bemoaned the supposed lack of a ‘‘credible enforcement mechanism’’ within the African system.89 Dlamini was convinced that the absence of a court within the system was unfortunate because it somehow rendered the Charter ineffective.90 And even Oji Umozurike, a highly respected jurist who once served for a long time as a member and later the Chair of the Commission, is convinced that in the absence of a court and of ‘‘effective enforcement measures’’ for a breach, the Charter may well be a ‘‘paper tiger.’’91 He recognizes, however, that effective public opinion may be as potent as a court as an inducement to states to comply with the Charter.92 This is an important admission, which while still compliance-centric, opens the door to a consideration of other (much less acknowledged) ways in which an IHI can exert influence within states. Another good indication of the hold that enforcement-centric analytical frameworks have had on scholarship in this area is the tendency in the literature to describe the oversight institutions of the African system as ‘‘enforcement mechanisms.’’93 84 86 88

89 90 91

92 93

See Udombana, supra note 60, at 64. 85 Ibid. at 63. Ibid. at 73 (emphasis added). 87 Ibid. at 64. See G. J. Naldi and K. Magliveras, ‘‘The Proposed African Court of Human and Peoples’ Rights: Evaluation and Comparison’’ (1996) 8 African Journal of International and Comparative Law 944. See Mutua, ‘‘Two-Legged Stool,’’ supra note 1, at 345. See Dlamini, supra note 62, at 202. See U. O. Umozurike, ‘‘The Protection of Human Rights under the Banjul Charter on Human and Peoples’ Rights’’ (1988) 1 African Journal of International Law 65 at 82. Ibid. See J. Mzizi, ‘‘Human Rights, Peace and the African Charter on Human and Peoples’ Rights’’ (1998) Africa Legal Aid Quarterly 37.

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The inherent limitations of the enforcement-centric optic have already been canvassed in chapter 2. However, it is important to note here that that optic (based as it is on a largely inappropriate analogy between the nature of domestic and international legal orders, and on a conception of the ideal IHI which is centred on the extent to which an IHI ‘‘looks like’’ the ideal kind of domestic court), is problematic as a way of imagining the potential of either IHIs in general, or of the African system in particular. Even domestic courts, assisted as they are by sheriffs, do not achieve effectiveness largely because of their own capacities to enforce their decisions. And even the best IHIs have not achieved compliance with their decisions largely because they have been able to enforce them. Thus, assessments of the African system that are based on a measure of its capacity to enforce its decisions, and which suggest that, for the most part, the system’s maladies may in real fact be effectively remedied by the grant of enforcement powers to the system (e.g., by adding a court to the system) are unconvincing. As Makau Mutua has brilliantly suggested recently: the mere addition of a court [the turn to enforcement], although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the African human rights system since its inception.94

While reiterating the fact that the enforcement of IHI norms can, of course, help produce valuable outcomes, I make bold to agree entirely with Mutua’s conclusion.

3.7 Voluntary compliance-centrism in the conventional conceptions of the African system Related as it is to the enforcement-centric optic, this optic still privileges the ability and capacity of an IHI such as the African system (or its component Commission or Court) to secure the compliance of states with its decisions, over the various other ways in which such an IHI can be of real use within the domestic context. Thus, according to this optic, the more the African system is able to secure the compliance of states with the Charter and the decisions of the Commission, the more effective it must be. However, unlike the enforcement-centred optic, the voluntary compliance-centred optic (hereinafter referred to as the 94

See Mutua, ‘‘Two-Legged Stool,’’ supra note 1, at 343 (emphasis added).

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‘‘compliance optic’’) does not view the deployment of coercive power as the key to securing such compliance. In this analytical framework, the key to securing state compliance is the ability of the system to generate the voluntary adhesion of the relevant state(s). The point here is not, of course, that this approach is incorrect in itself; it is that it is limiting. This tendency is at least as dominant in the relevant literature as the enforcement-centred one. Indeed, much enforcement-centred analysis of the performance of the African system seems somewhat conflicted as to whether to toe the ‘‘enforcement’’ line or to embrace the ‘‘compliance’’ optic. However, it is still possible to isolate a ‘‘compliance-centric’’ strain within the relevant literature. Let me illustrate. E. V. O. Dankwah, a long time member and sometime Chair of the Commission, has explicitly stated his conviction that the principal function of the Commission is to secure the non-coerced compliance of states parties to the African Charter.95 Ankumah echoes this view of the Commission’s primary mission. In her view ‘‘the African Commission on Human and Peoples’ Rights is the body entrusted to ensure state compliance of [sic] the rights and freedoms guaranteed by the African Charter.’’96 Joe Oloka-Onyango agrees, and bemoans what he sees as the dominant tendency of states not to comply voluntarily with the Commission’s decisions.97 Udombana has similarly lamented what he views as the blatant disregard of the Commission’s recommendations by some African states.98 Makau Mutua is convinced that the establishment of the Court ‘‘signifies movement towards effective accountability’’ within the African system.99 A similar tendency is evident in the work of a number of other scholars.100 While the routine voluntary compliance of states with the views or recommendations of the Commission or the judgments of the Court would be most welcome and fruitful, the compliance-focused optic 95

96 97 98 99

100

E. V. O. Dankwah, ‘‘Commentary on the Rules of Procedure of the African Commission on Human and Peoples’ Rights’’ (1990) 2 ASICL Proceedings 29. See Ankumah, supra note 1, at 13. See Oloka-Onyango, ‘‘Human Rights,’’ supra note 40, at 71. See Udombana, supra note 60, at 67–69. See M. Mutua, ‘‘Looking Past the Human Rights Committee: An Argument for Demarginalizing Enforcement’’ (1998) 4 Buffalo Human Rights Law Review 211 at 254. See C. E. Welch, Jr., ‘‘Human Rights and African Women: A Comparison of Protection under Two Major Treaties’’ (1993) 15 Human Rights Quarterly 549; I. B. El-Sheikh, ‘‘The African Commission on Human and Peoples’ Rights: Prospects and Problems’’ (1989) 6 Netherlands Quarterly of Human Rights 272; F. Viljoen, ‘‘Some Arguments in Favour and Against an African Court on Human and Peoples’ Rights’’ (1998) 10 ASICL Proceedings 21 at 22–23.

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often over-estimates its potential in a world of relatively sovereign and asymmetrically powerful states. Also, all too often, that optic assumes that in the absence of state compliance, an IHI like the African system cannot exert a meaningful level of influence within states. Following our explication (in chapters 4 and 5) of the ways in which the African system has in fact exerted a significant level of influence within Nigeria and South Africa that cannot be adequately explained in terms of state compliance, and following our explication in chapter 6 of the similar, though more modest, ways in which that system has also had some appreciable impact within some other African states, we will (in chapter 7) return to this theme, this analytical expose´ of the ways in which IHIs can exert valuable influence outside the enforcement- or compliance-based optics.

3.8 How does the African system fare overall under the conventional evaluative models? Most of the pre-existing appraisals of the African system (or of one of its components) have, on balance, rendered a negative verdict. Only a small number of such attempts to evaluate the work of the Commission have been even close to laudatory. The system’s glass has far more often been assessed – with some justification – as half empty rather than half full. This point can be easily illustrated. Writing in 1993, about eleven years ago, Shedrack Gutto observed that the ‘‘Commission’s operations and effectiveness to date is, to be honest, appalling.’’101 Udombana has recently concluded that ‘‘after more than a decade of existence, the Commission can barely be said to have made any significant contribution to human rights protection in the African continent.’’102 OlokaOnyango is of the considered view that: Thus far, more than ten years after it commenced operations, the Commission has not even slightly threatened the ‘‘business-as-usual’’ modus operandi that prevails among African states and within the OAU. Its operations do not even marginally affect the status quo.103

Elsewhere, he has described the Commission’s progress as ‘‘steady but unremarkable.’’104 Makau Mutua is convinced that the ‘‘Commission 101 102 103 104

See Gutto, ICJ Workshops, supra note 56, at 14. See Udombana, supra note 60, at 64. See Oloka-Onyango, ‘‘Human Rights,’’ supra note 40, at 71 (emphasis added). See Oloka-Onyango, ‘‘Beyond the Rhetoric,’’ supra note 40, at 52–53.

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has been a disappointment.’’105 Claude Welch’s assessment of the Commission’s work in 1992 led him to a similar conclusion. He was of the view that ‘‘the current situation of the Commission is far from satisfactory – though not as serious as its most severe critics allege.’’106 Udeme Essien has noted that ‘‘in practice, there is a huge gap between the anticipated goals of the Commission . . . and the achievements on the ground . . . despite these odds, the Commission has made some progress.’’107 Viljoen’s fairly recent declaration that the Commission ‘‘has gradually established itself over a decade as a body of importance’’ is one of the few conventional assessments of the system that is even close to being seen as laudatory.108 Some of this tendency to dismiss the system or one of its components as virtually impotent is, of course, due to the system’s initial hesitancy to publicize its activities. As Amoah, and later Ankumah, have shown, in its early days, the Commission construed too narrowly the confidentiality requirements of the Charter, resulting in widespread ignorance of its work and impact, and to some very pointed charges of ineffectiveness.109 That is not to say, however, that the charges of ineffectiveness levelled against the Commission are without substance. Rather what is being suggested, for the most part, is that many of these charges are in fact slightly overstated, in part because of the Commission’s failure in the early days of its existence to make the details of its activities available to the public.110 A careful survey of the literature is indicative of the system’s increasing strength and relative importance. Some of these strengths relate to the performance of a component organ of the system, while others relate to the nature of the textual provisions in the Charter. Many of the more recent assessments of the system have noted the Commission’s ‘‘mostly positive and sometimes even innovative’’111 interpretation of the 105 106 107

108

109

110

111

See Mutua, ‘‘Two-Legged Stool,’’ supra note 1, at 345–351. See Welch, supra note 1, at 53. See Essien, supra note 56, at 96. Many other observers of the activities of the system agree. For an early indication of the scepticism that has characterized scholarly assessments of the system, see, R. Gittleman, supra note 29. See F. Viljoen, ‘‘The Relevance of the Inter-American Human Rights System for Africa’’ (1999) 11 African Journal of International and Comparative Law 659 at 669. See P. Amoah, ‘‘The African Charter on Human and Peoples’ Rights: An Effective Weapon for Human Rights?’’(1992) 4 African Journal of International and Comparative Law 226 at 235–236; and Ankumah, supra note 1, at 38–40. For a description of the Commission’s increasing tendency to disseminate information regarding its activities, see Ankumah, supra note 1, at 39–40. See Odinkalu, supra note 1, at 410.

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Charter – what Rachael Murray has referred to as its ‘‘dynamic interpretation’’112 of its mandate; what Ankumah has described as the ‘‘creative’’ usage of the Charter;113 and what Mohamed has characterized as a ‘‘bold’’ approach.114 Indeed, Mugwanya summed up this increasingly progressive and activist stance of the Commission quite well when he noted that the Commission has ‘‘augumented its role beyond the likely intention of the drafters’’ and has ‘‘displayed activism in enforcing human rights.’’115 Julia Harrington is prepared to de-emphasize criticisms of the Charter that are based on the text of that instrument on the very sound basis that the Commission’s interpretation of the Charter has been quite progressive.116 Similarly, a number of other scholars have recognized the ‘‘enterprising’’ and ‘‘resourceful’’ nature of the Commission.117 Even within the state-centric and compliance-focused paradigms, the Commission’s performance has not been without some flashes of brilliance. Ample evidence exists to support these relatively (if modestly) positive reviews of the Commission’s attitude to its own work. For instance, the Commission has in Commission Nationale des Droits de l’Homme et des Liberties v. Chad,118 reinforced the absence of a general derogation clause in the Charter by holding that under no conditions whatsoever will a state be allowed to derogate from a provision of the Charter, and that not even a state of emergency such as a civil war in Chad justifies such a derogation.119 This position is much stricter and much more pro-human rights than the position within other international human rights systems. Also, the Commission has often waived admissibility requirements for individual petitions arising from situations of serious or massive violations of human rights.120 Furthermore, the Commission has, in very clear and critical terms, condemned the then military juntas that ruled

112 113 115 116 117

118 119

120

See Murray, ‘‘Decisions,’’ supra note 55. See Ankumah, supra note 1, at 73. 114 See Mohamed, supra note 42, at 303. See Mugwanya, supra note 63, at 43–45. See Harrington, supra note 68, at 470. See Yirgu, supra note 79, at 63–65; Donnelly, supra note 22, at 92; and Korley, supra note 56, at 200. Communication No. 74/92. See R. Murray, ‘‘Serious or Massive Violations under the African Charter on Human and Peoples’ Rights: A Comparison with the Inter-American and European Mechanisms’’ (1999) 17 Netherlands Quarterly of Human Rights 109 at 115. Ibid. at 118.

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Nigeria121 and the Gambia,122 acts that are very significant given the fact that Nigeria is one of the two most powerful African states, and taking into account the Gambia’s position as the host of the Commission’s Secretariat. In the same vein, as Chidi Odinkalu has noted, at its Fourteenth Ordinary Session, the Commission made some progress in terms of its increasing boldness in that it was at that session that it took the then unprecedented step of adopting and publishing a strongly worded resolution123 that (a) deplored the attitude of the then government of Malawi in ignoring the Commission’s inquiries, and (b) found Malawi ‘‘guilty’’ of massive and serious violations of human rights.124 The Commission has also adopted a host of other very creatively worded resolutions which have contributed to the promotion of human rights in Africa.125 On another note, the Commission has allowed what Odinkalu has described as ‘‘very wide margins of exception’’ to the requirement that a petitioner first exhaust domestic remedies before approaching the Commission;126 and adopted very liberal access requirements, in keeping with the liberal attitude of the Charter in this regard.127 It has also interpreted the Charter creatively so as to ‘‘outlaw’’ military rule in general,128 and so as to be able to indicate ‘‘interim measures’’ in a number of urgent communications before it.129 Another even more telling evidence of the Commission’s increasingly bold interpretive behaviour is its decision in Katangese Peoples’ Congress v. Zaire, where it felt able to hold that under certain exceptional circumstances, a sub-state group (a people) who are encircled by a state party may be entitled to secede from that 121

122

123 125

126 128 129

See Resolution on Nigeria, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995 (ACHPR/RPT/8th), Annex VII. See Resolution on the Gambia, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995 (ACHPR/RPT/8th), Annex VII. See Odinkalu, supra note 1, at 385. 124 Ibid. Umozurike has noted the Commission’s resolutions on the celebration of an ‘‘African Human Rights Day’’ on 21 October of every year; and the incorporation of human rights teaching in the educational curricula of states parties. See Umozurike, supra note 56, at 73. See Odinkalu, supra note 1, at 390–392. 127 Ibid. at 386–387. See Umozurike, supra note 56, at 33. For instance, see CRP (in respect of Ken Saro-Wiwa and 17 others) v. Nigeria Communication No. 139/94; and CRP (in respect of M. K. O. Abiola and others) v. Nigeria Communication No. 140/94. For both decisions, see Institute for Human Rights and Development, Compilation of Decisions of the African Commission on Human and Peoples’ Rights, 1994–2001 (Banjul, Institute for Human Rights and Development, 2002), pp. 230 and 248, respectively.

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state.130 Given the fact that African states have understandably remained as extremely sensitive to the threat of disintegration as imaginable, this decision by the Commission is a notably bold and creative interpretation of the Charter. Again, largely due to its persistence, the Commission has succeeded in breaking down the extremely strong resistance of many African governments to its conduct of on-site factfinding missions within their respective countries.131 It also played a major role in getting every one of the fifty eligible African states (apart from Eritrea) to ratify the Charter.132 Eritrea, the youngest African state, is the only state that has not ratified the Charter. This is, by any standard, a very high level of ratifications indeed. And while ratification in and of itself does not imply actual adherence to the standards set by the treaty, it is always a worthy first step. Moreover, despite its supposed textual weaknesses, the Charter itself is not without some significant positive aspects – what scholars such as D’sa have referred to as its ‘‘distinctive features.’’133 One such feature is its uniqueness (vis-a`-vis the other regional mechanisms) in providing explicitly for a mechanism to deal with a series of serious or massive violations of rights.134 Indeed, other such distinctive features have clearly contributed to the limited success that the African system has achieved (whatever its extent). A good example is the Charter’s extremely liberal locus standi requirements which allow virtually any one to bring forward a communication about the alleged violation of virtually any provision of the Charter, notwithstanding that the relevant person 130

131 133

134

See Communication No. 75/92 (1996) 3 International Human Rights Reports 136. For an extended consideration of some issues raised in this decision, see O. C. Okafor, ‘‘Entitlement, Process, and Legitimacy in the Emerging International Law of Secession’’ (2001) 9 International Journal on Minority and Group Rights 41. For briefer discussions of this case, see C. Drew, ‘‘The East Timor Popular Consultation: Self-Determination Denied’’ (1999) 4 Human Rights Law Review 2 at 4; and Oloka-Onyango, ‘‘Human Rights,’’ supra note 40, at 55. See Odinkalu, supra note 1, at 394–396. 132 See Benedek, supra note 56, at 26. See R. D’sa, ‘‘Human and Peoples’ Rights: Distinctive Features of the African Charter’’ (1985) 29 Journal of African Law 72 at 72–81. See also Oloka-Onyango, ‘‘Human Rights,’’ supra note 40, at 58; M. Mutua, ‘‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’’ (1995) 35 Virginia Journal of International Law 339; E. K. Quashigah, ‘‘Human Rights and African Economic Integration’’ (1996) 8 ASICL Proceedings 214 at 224; and N. K. A. Busia and B. G. Mbaye, ‘‘Filing Communications on Economic and Social Rights under the African Charter on Human and Peoples’ Rights (The Banjul Charter)’’ (1996) 3 East African Journal of Peace and Human Rights 188 at 191–192. See Murray, supra note 119, at 109–110.

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has not been affected personally by the violation. This provision has been much harnessed by local NGOs and has enabled many petitions to be considered by the Commission that would not ordinarily have been admissible in the comparable mechanisms of other IHIs. Even more gratifying is the fact that the treaty which set up the Court as a part of the African system seems, for the most part, to have been genuinely designed to complement and enhance the work of the already functional components of the system. It contains a number of very important features that are likely to enhance the system’s overall capacity and value. For one, the African system is now unique in explicitly requiring some consideration of gender equity (‘‘adequate gender representation’’) in the composition of the Court.135 This provision may have been inspired by severe criticisms of the gender imbalance in the composition and work of the Commission. For instance, as at June 1997, only two members of the Commission were female,136 and as at 1996, the Commission had not received an explicitly gender-based communication.137 The Court also has a broader jurisdiction ratione materiae than the other regional human rights courts.138 On the whole, the point must be made that it seems fairly clear that even when the conventional approach to the evaluation of the African system is taken on its own terms, and used to assess the system and its components, as has just been done here, the system does not perform as badly as it is often portrayed. Certainly, an assessment of the system which is based on the conventional optic does not lead one to conclude that the African system has performed exceptionally well. Far too many problems inhibit it from achieving such distinction. What is striking from even such an incomplete kind of analysis is that many of the most severely critical assessments of the system are unjustified in the extent of their severity. This is by no means a novel point. After all, did not Claude Welch end his assessment of the first five years of the work of the Commission by making a similar point?139 It is as difficult today to disagree with Welch’s conclusion as it was then. Given the number of strikes against it that the Commission has had to contend with,140 it is by no means unreasonable to argue that the young life of the African system 135

136 138 140

See I. Osterdahl, ‘‘The Jurisdiction Ratione Materiae of the African Court of Human and Peoples’ Rights: A Comparative Critique’’ (1998) Review of the African Commission on Human and Peoples’ Rights 132 at 135. See Harrington, supra note 68, at 461. 137 See Ankumah, supra note 1, at 155. See Osterdahl, supra note 135, at 136. 139 See Welch, supra note 1, at 57. Ibid. at 43.

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has been a modest if limited success story, even when evaluated against the conventional standards of assessment. If organizational efficiency is the barometer, it cannot be said, despite its continued problems, that over the last fourteen years or so, the African system has not improved greatly in that department. If state compliance is the barometer, it also cannot be said that the African system has failed entirely in that regard. Admittedly, the level of direct state compliance remains quite low. For instance, the Abacha dictatorship in Nigeria flagrantly flouted a request made to them by the Commission asking them to stay the proposed execution of Ken Saro-Wiwa and a number of other Ogonis.141 Also, Rwanda has disregarded a similar request.142 But surely, those who declare that no state ever complies with the Commission’s decisions cannot be correct. Did not the same Abacha regime in Nigeria later stay the trial of the second batch of Ogonis arrested at the same time as Saro-Wiwa?143 Did not Nigeria (then under military rule) comply duly with the Commission’s directive to prepare and file a fresh and better state report?144 And did not Ethiopia, Swaziland, and South Africa comply within a reasonable period with the Commission’s resolution calling upon them to ratify the Charter?145 And if its failure to serve as the panacea for the human rights problems that face African states today is the barometer that must be used, then no IHI anywhere in this world can ever be said to be successful – for the pandemic nature of human rights violations are a universal fact of life. Again, the point that is being made is that even when the compliancefocused model is taken on its own terms, the African system has still enjoyed a measure of success, however more marginal it may have been.

3.9 Are conventional conceptions of the African system adequate? As we will demonstrate fully in chapter 6, the conventional ways of imagining IHIs such as the African system are limited and need 141 143

144

145

See N. J. Udombana, supra note 60, at 68. 142 Ibid. at 68–69. O. C. Okafor, ‘‘International Law, Human Rights and the Allegory of the Ogoni Question’’ in E. K. Quashigah and O. C. Okafor (eds.), Legitimate Governance in Africa: International and Domestic Legal Perspectives (The Hague, Kluwer Law International, 1999), p. 509. See African Commission Reports (1992), vol. 12, p. 3; and African Commission Reports (1993), vol. 13, pp. 14–21. The call went out during the Seventeenth Session. See S. Malmstrom and G. Oberleitner, ‘‘17th Session of the African Commission on Human and Peoples’ Rights’’ (1995) 13 Netherlands Quarterly of Human Rights 292 at 295.

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conceptual reinforcement. These conventional optics seem to be unable to capture adequately the forms of ‘‘correspondence’’ (between on the one hand, the requirements of the Charter, the views of the Commission, and the goals of the system as a whole, and on the other hand, the character and behaviour of domestic institutions) which lie beyond the state compliance radar. Given their inability to capture these kinds of highly valuable ‘‘data’’ regarding the full range of influence that an IHI such as the African system can exert within a state without necessarily being highly successful at securing direct state compliance, the conventional optics are not holistic. They are thus also not adequate. The point that is being made is not that the literature has not, to some extent, realized the need to reach beyond (while retaining) the conventional ‘‘compliance-based’’ optics or frameworks. A number of the keenest observers of the African system have hinted at the possibility of this kind of extra-compliance correspondence. For instance, in the introduction to his excellent paper on the African Court, Mutua describes his objective as offering a discussion of the ways in which the Court can penetrate the legal and political cultures of African states to inspire, encourage, and ensure the internalization of human rights.146 But Mutua does not (understandably) deal with this question in detail in the rest of this brilliant paper. He does not focus on a detailed account of the ways in which this kind of human rights communication can occur, and has sometimes occurred, in the absence of an appreciable level of state compliance with the decisions of the Court. Odinkalu has also hinted at the possibility of ‘‘correspondence’’ without ‘‘compliance.’’ In his analysis of the attitude of the Commission to the resolution of pending communications, he concludes that in the Commission’s view, the bottom line is the redress of the violations complained of, and not necessarily the compliance of a state with its decision on the matter.147 Yet he does not seem to develop and theorize this insight of his further to recognize the phenomenon at play here as a form of ‘‘correspondence’’ that lies outside the compliance optic. Thus, what is being suggested is that even those scholars who have hinted at the existence of such ‘‘correspondence’’ seem either to hold back from pursuing the point to its logical conclusion, or seem to be intent on squeezing that form of correspondence into the familiar compliance-based framework.

146 147

See Mutua, ‘‘Two-Legged Stool,’’ supra note 1, at 345. See Odinkalu, supra note 1, at 382–384.

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As will be shown in chapters 4 and 5, a reasonable quantity of evidence exists to support the idea that, under certain conditions, correspondence can occur beyond the state compliance optic; that a state actor’s domestic institutions and public discourses/attitudes can be significantly affected by the activities or norms of the African system, even when that state does not in fact directly comply in most instances with the views or decisions of this IHI. The example of the ACHPR phenomenon (already described in brief at the end of chapter 2) will be used to make this point at some length in chapters 4 and 5. Chapter 6 will attempt to map the more modest ways in which the ACHPR phenomenon has been replicated in certain other African states.

3.10 Summary of the arguments It has been argued in this chapter that important as their insights have often been, conventional approaches to the African system, like conventional understandings of IHIs more generally, have tended to suffer from several significant limitations. These approaches to the African system have, with insufficient justification, tended to view the system as a potential panacea, as weak and ineffectual, and as therefore dysfunctional. Adherents of these conventional approaches have also tended to imagine the textual or organizational reform of the system in itself, not merely as important, but as the key to the success of that institution. The tendency of these conventional approaches to exhibit these kinds of limitations is largely traceable to the focus, without much more, on state compliance in all but a handful of the pieces of scholarly writing on the African system. This is a posture that, as will be shown in the next chapter, has led far too many adherents of these approaches to miss important insights about the other kinds of effects that IHIs like the African system can have within states. The implied suggestion is to reach beyond, while retaining, the state compliance measure.

4 The impact of the African system within Nigeria

[I]t would be idle to claim that the Commission [and the system as a whole] has acquired or will ever command the spontaneity of compliance enjoyed by the Oracle of Delphi. However, any temptation to dismiss it as a worthless institution today must be regarded as premature, illinformed, or both. Chidi Odinkalu1 Imaginative strategies for the activation of the Commission [and the system as a whole] demonstrate that the success of the mechanism [and the system] depends as much on activist forces and activists as it does on the members of the body. Joe Oloka-Onyango2

4.1 Introduction As Steiner and Alston have noted, many scholars have for long been perplexed by the difficulties associated with attempts to demonstrate the influence that international human rights institutions (IHIs), such as the African system for the promotion and protection of human and peoples’ rights,3 might have exerted within particular domestic contexts.4 How, they have asked, does one go about the evaluation of the impact that an IHI such as the African system has exerted within a

1

2

3 4

See C. A. Odinkalu, ‘‘The Individual Complaints Procedure of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’’ (1998) 8 Transnational Law and Contemporary Problems 359 at 402. See J. Oloka-Onyango, ‘‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa’’ (1995) 26 California Western International Law Journal 1 at 56. Hereinafter referred to as ‘‘the African system.’’ See H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics and Morals (New York, Oxford University Press, 2000), p. 771. This is a difficulty that has

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particular country?5 What would constitute ‘‘reasonably persuasive evidence’’ that an IHI, such as the African system, has influenced ‘‘the course of events in a given country,’’ or the behaviour of any or all of its domestic institutions?6 The conventional approach to providing the sort of ‘‘answers’’ that Steiner and Alston want has been to seek, almost exclusively, material evidence of state compliance with the norms/decisions of such institutions. And so in order to demonstrate that a given IHI has exerted significant influence in a given country, one had to show that the relevant state had in fact mostly ‘‘obeyed’’ or complied with specific directives issued by the relevant IHI. The more of such compliance one could find, the more the influence that the IHI had exerted within that state. For instance, the European human rights system is often said to have been influential in Britain because, inter alia, Britain complied, for the most part, with its decisions on Britain’s treatment of captured members of the Irish Republican Army.7 State compliance with IHI norms/decisions is, of course, a very valuable and desirable phenomenon, and the optics designed to capture and assess such state compliance are not any less valuable. However, as has been suggested in previous chapters, the occurrence of state compliance does not exhaust the possibilities of IHI influence within states. There are other valuable ways in which IHI’s, such as the African system, can be quite influential within target states. The task, therefore is to reach beyond, while retaining, the state compliance optic. Relying rather too heavily on the compliance-centered conventional approaches, most observers of the African system have returned a largely dismissive verdict regarding the impact of that system within African states and its relevance to the lives of African peoples. Thus, as has been demonstrated in chapter 3, dismissive accounts of the relevance of the system to the lives of Africans abound. Indeed, the existing literature is replete with, and dominated by, very critical reviews of their performance and effectiveness. For instance, Joe Oloka-Onyango, one of the most respected and prominent human rights scholars on the African continent, is convinced that after more than a decade of existence, the Commission (and the African system overall) ‘‘has hardly made a dent’’ in the African human

5 7

also been alluded to by Dominic McGoldrick. See D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford, Oxford University Press, 1994), p. 504. See Steiner and Alston, supra note 4. 6 Ibid. See J. Donnelly, ‘‘International Human Rights: A Regime Analysis’’ (1986) 40 International Organisation 599 at 605.

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rights scene.8 Coming from such respectable and sympathetic quarters, these kinds of assessments of the African system’s performance must be taken very seriously. The result is that the reader is left with the impression that these institutions are at best extremely ineffective, and at worst, all but worthless. However, while it cannot be claimed that the African system has played a crucial role in the human rights discourses, politics, and practices of each and every African state, it is certainly not the case that it has, in every case, been irrelevant to the lives of the citizens of African states.9 The point is that even though the African system may not fare well when assessed against the dominant paradigm, it cannot be dismissed on that score alone as altogether irrelevant to the lives of Africans. For, while the conventional paradigm measures the rate at which states comply with the decisions or directives of such institutions (a kind of command and control model), the more holistic paradigm which I envisage would regard that question as a mere starting point. It would in addition make inquiries as to the various other ways that these institutions have or have not made a difference in the lives of Africans (for instance, by influencing the thinking and actions of domestic institutions). And observed through this more holistic optic, the African system appears to have exerted a modest yet significant level of influence within at least one African state – Nigeria. This modest feat is quite remarkable given the fact that Nigeria was for most of the relevant period governed by dictatorial military regimes. However modest its effects have been, the African system’s impact within Nigeria, a state which has been governed in a largely dictatorial manner, flies in the face of almost every prediction regarding the likely locations of the system’s impact. For instance, writing in 1992, Claude Welch was convinced that: The impact [of the system] likely will be felt mostly in states which have leaders who begrudgingly recognize human rights and whose efforts can be encouraged by the Banjul Charter’s existence.10

8

9

10

See J. Oloka-Onyango, ‘‘Human Rights and Sustainable Development in contemporary Africa: A New Dawn, or Retreating Horizons?’’ (2000) 6 Buffalo Human Rights Law Review 39 at 72. The thrust of George Mugwanya’s recent book also lends itself to this conclusion. Indeed, he has concluded quite categorically that the activities of the African Commission have had an impact in Nigeria. See G. Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System (Ardsley, NY, Transnational, 2003), p. 254. See C. E. Welch Jr., ‘‘The African Commission on Human and Peoples Rights: A Five Year Report and Assessment’’ (1992) 14 Human Rights Quarterly 43 at 56.

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Welch’s prediction was clearly that the African system would not be able to exert a significant level of influence within a country that was, for the most part, governed by a dictatorial military regime. The point that is being made here is that this prediction has, at least in the Nigerian case, not been borne out by the evidence that is now available. As interestingly, this modest feat was accomplished in ‘‘alliance’’ with the activist forces, mainly the activist judges and civil society actors (CSAs) who have acted as the go-betweens, ‘‘brainy relays,’’ or intelligent transmission-lines between the African system and various institutions and actors within Nigeria (such as the courts, the executive, and the legislature). In this process of trans-judicial communication, Nigerian activist forces played the role of brainy relays which did not merely transmit, but also contributed actively to the development and strengthening of both the Nigerian and African human rights systems. The African system, Nigerian activist forces, activist judges, activist lawyers, activist journalists, and some international actors were allied in a ‘‘virtual partnership,’’ a human rights network which enabled the system to exert a significant level of influence within Nigeria. Here I am reminded of Kathryn Sikkink’s insight regarding the ways in which our appreciation of the workings of international regimes is immediately deepened and expanded when once we factor in ‘‘the role of non-governmental actors [and networks] in developing norms and helping to create, monitor, and strengthen some regimes.’’11 In order to demonstrate the points that I have alluded to in the foregoing paragraphs, I have organized this chapter into eight sections (this introduction included). In section 4.2, I focus on the impact of the African system on judicial thinking and action within Nigeria: how has the system (in concert with the human rights network of activist forces that it has helped foster) influenced judicial reasoning and action; and what are the mechanics involved in the process through which such influence has been exerted? In section 4.3, I turn my attention to the impact that the system and the relevant network have had on executive action and behaviour within Nigeria: to what extent has the executive branch of government been influenced by the African system? In section 4.4, I examine the question of the influence that the system has had on legislative action and legislation in Nigeria, concentrating on the extent to which there has been ‘‘correspondence’’ between the system’s 11

See K. Sikkink, ‘‘Human Rights, Principled Issue-Networks, and Sovereignty in Latin America’’ (1993) 47 International Organisation 411 at 439.

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decisions and norms, and certain legislative changes that occurred in Nigeria. Section 4.5 will deal with the extent to which the system has influenced the course of CSA activism within Nigeria. Here, I will be concerned with the influence exerted by the system (or by any of its components) on the work of CSAs within Nigeria. In section 4.6, I assess the overall impact of the African system within Nigeria, and theorize on its nature, mechanics, and significance. In section 4.7, I isolate and examine the factors that have either facilitated or militated against the influence that the African system has exerted within Nigeria. Section 4.8 concludes the chapter. There, I summarize the major arguments that have been offered in the chapter, and link them to the content of the following chapter. It is important at the outset to understand that the influence that the African system has had within Nigeria has, in virtually every case, been brokered by either a local CSA or another element of the activist forces that operate within that country. This has been the case, whether the site of such influence has been the judiciary, the legislature, or the executive. As such, every section of this chapter contains evidence of the role that such activist forces have played in facilitating the African system’s influence within Nigeria. It is also as important to note that the constructivist or other theoretical literature will not be discussed in any detail in this chapter. That discussion has already occurred in chapter 2. What will be done here is to present empirical evidence of the modest influence that the African system has exerted within Nigeria. The focused discussion of how this evidence supports and adds to the broad constructivist theoretical position on IHIs will occur in chapter 7. And as the main objective of this book is not so much to account comprehensively for the impact of the African system, as it is to assess the ways in which the occurrence of significant African system impact reinforces or detracts from traditional IHI theory, no overall quantitative analysis of case law is undertaken here. Reliance is placed on the major cases and examples which in themselves establish the profound depth of even the modest impact that the African system has so far had within Nigeria. The last caveat that needs to be entered at this juncture is that while the discussion which follows often raises many important and interesting questions, not every such question is either fully relevant or significant in the context of the defined objectives of this book. As such, many such questions will of necessity be left unanswered. Only those which are necessary to achieve the book’s objectives will be discussed.

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4.2 Impact on judicial decision-making and action Even though the relevant literature has so far failed to account comprehensively and adequately for this phenomenon, the impact of the African system on judicial reasoning and action within Nigeria has been as extensive as it has been deep. The influence of the system on Nigerian courts of law has now become far deeper and much more extensive than it was in 1991 when Chidi Odinkalu was quite right to describe its effects as ‘‘feeble.’’12 In fact, of the three branches of the Nigerian government, the African system has had the most impact on the Nigerian judiciary. The very frank call to action made by Uwaifo JCA (as he then was) in Peter Nemi v. Attorney General of Lagos State and another13 signifies the fervour with which the African system’s potential impact was received within the activist wing of the Nigerian judiciary. He had cautioned fellow judges that: it is not enough that we [Nigeria] have ratified the African Charter . . . We must move with the rest of the human race in the implementation of those rights. While the Executive may take steps to examine or set in motion ways of improving human rights situations, the Judiciary should actively show its impetuous readiness to complement or indeed surpass the efforts of the Executive by an inspiring judicial approach to, or definition and recognition of, circumstances of human rights where appropriate and feasible.14

In fact, it is not an exaggeration to say that that the impact exerted by that system has been fundamentally important to the progressive development of activist human rights jurisprudence in Nigeria. The system has also been extremely important to many members of the judiciary as they strove to guard their independence in an atmosphere of great risk, military dictatorship, and political upheaval. Imaginatively purveyed and deployed by the elements of the activist forces that have brought these cases, the system’s norms (i.e. the Charter and the Commission’s jurisprudence) have worked in a significant number of cases to strengthen most significantly the hand of these activist judges as they sought to deploy legal reasoning to outlaw and delegitimate the strenuous attempts by the military dictatorships 12

13

See C. A. Odinkalu, ‘‘Muhammed Garuba and Others v. Lagos State Attorney-General and Others: A Case for Municipal Application of International Human Rights Norms’’ (1991) 1 Journal of Human Rights Law and Practice 125 at 134. (1996) 6 NWLR 42. 14 Ibid. at 58 (emphasis added).

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which ruled Nigeria during most of this period to oust the judiciary’s ability to review the actions of the executive branch of government.15 The existence of the Charter as an integral part of Nigeria’s domestic laws,16 the character of the substantive and procedural provisions of the Charter, and the Commission’s progressive and activist interpretive jurisprudence and approach, have all worked in various interesting ways to empower and enable these activist Nigerian judges to: (a) advance highly creative and courageous arguments, and take decisions, that would not otherwise have been legally possible and/or politically viable; (b) prefer a more progressive interpretation of the Constitution or a domestic law to a less progressive one; (c) assume jurisdiction over serious human rights cases in circumstances where the assumption of jurisdiction would not have been otherwise possible; (d) insulate themselves, to a significant extent, from charges of excessive participation in the turbulent anti-military politics of the relevant period (by cleverly cloaking their own activist decisions as simply the logical outcomes of Nigeria’s participation in the African system); (e) avoid, almost always, the career-related and personal risks of appearing to be an obvious ally of the highly vocal local opposition movement; and (f) contribute to the securement of the lives and liberties of thousands of ordinary Nigerians. 15

16

The military’s preferred method of attempting to emasculate the courts was the introduction of so-called ‘‘ouster clauses’’ in most of their decrees. According to I. O. Smith: ‘‘An ouster clause precludes the court or any other judicial or quasi-judicial body from entertaining any action or claim brought before it on specific matters highlighted, or on any question pertaining to any action taken or anything done pursuant to the provision of any Decree.’’ See Smith, infra note 17, at 199. See African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Chapter 10, Laws of the Federation of Nigeria, 1990. Article 1 of this Act provides, inter alia, that: ‘‘As from the commencement of this Act, the Provisions of the African Charter on Human and Peoples’ Rights . . . shall . . . have the force of law in Nigeria and shall be given full recognition and effect and shall be applied by all authorities and persons exercising legislative, executive or judicial power in Nigeria.’’ The broad intention of this section was reaffirmed by the Supreme Court of Nigeria (though only by implication) in Ogugu v. The State (1994) 9 NWLR 1 at 26–27 and 47. See also U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1997), p. 111.

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Some or all of these phenomena are present in each of the cases of judicial activism which are described and analyzed in the following paragraphs of this section. These cases are a testimony to the extent to which the African system has had a modest, yet fundamental, impact on the decisions and actions of the judiciary in Nigeria. They also signify the significant extent to which the Charter has (during the relevant period) contributed to the progressive development of Nigerian human rights jurisprudence. Concomitantly, they also testify to the extent to which the activist forces which operate in Nigeria have contributed immensely to the development of the African system itself. It is the elements of the activist forces which operate within Nigeria that have acted as the intelligent relays that have persuaded the relevant judicial officers to initiate a process of transforming the self-understandings, conceptions of interest, and logics of appropriateness which were hitherto prevalent within (and without) the Nigerian judiciary. I will turn to an analytical consideration of a large and most representative sample of these kinds of cases. As this is not a doctrinal study of the cases, only salient and relevant aspects of the cases are considered.

4.2.1 Zamani Lekwot case17 In 1993, seven prominent leaders of the Kataf ethnic minority in the Northern Nigerian State of Kaduna were arrested, detained, tried before a military tribunal headed by Justice Benedict Okadigbo,18 convicted, and sentenced to death. These persons were Major-General Zamani Lekwot, James Atomic Kude, Yohanna Karau Kibori, Marcus Mamman, Yahaya Duniya, Julius Sarki Zamman Dabo, and Iliya Maza.

17

18

For this case before the Commission, see Communication 87/93, The Registered Trustees of the Constitutional Rights Project (in respect of Zamani Lekwot and six others) v. Nigeria (Merits) reproduced in (1996) 3 International Human Rights Reports 137. For the same case before the Nigerian courts, see Constitutional Rights Project v. President Ibrahim Babangida and two others, Suit M/102/93, Lagos State High Court, per Onalaja J (unreported). This case has become something of a cause ce´le`bre among observers of the African human rights scene. See E. A. Ankumah, The African Commission on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1996), pp. 72–73; Odinkalu, supra note 1, at 402–403; I. O. Smith, ‘‘Enforcement of Human Rights Treaties in a Military Regime: Effect of Ouster Clauses on the Application of [the] African Charter on Human and Peoples’ Rights in Nigeria’’ (2000) 9 Review of the African Commission on Human and Peoples’ Rights 192 at 204. This was the Zangon-Kataf Civil Disturbances Special Tribunal.

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Upon a communication filed on their behalf by the Constitutional Rights Project (CRP), the African Commission on Human and Peoples’ Rights indicated ‘‘interim measures’’ to the effect that the Nigerian military government should suspend the implementation of the sentence pending the outcome of the matter. The Nigerian military government was duly notified of this fact. It was also given extremely wide local publicity by the CRP, who had also instituted an action at the Lagos High Court in Nigeria asking the court to compel the Nigerian military government to respect the Commission’s request that the planned executions be stayed. In technical legal terms, the CRP asked for an interlocutory injunction restraining the Nigerian military government from executing the seven convicted persons pending the determination of their communication before the African Commission on Human and Peoples’ Rights.19 The communication was itself based on the rights that had been guaranteed to them under the African Charter on Human and Peoples’ Rights. The court, per Onalaja J (as he then was), granted the application and dismissed the government’s objections that the court had no jurisdiction to hear the matter. It held that it was necessary to grant the injunction in order to preserve the subject matter of the communication before the Commission; that is, the lives of the convicted persons. Without this injunction, the court reasoned, the government could go ahead and execute them, thereby rendering the anticipated decision of the Commission nugatory. For reasons that are explicated later on in this chapter, the military government did not execute the convicted persons. At the conclusion of the parallel matter before the African Commission in 1996, the Commission found grave violations of the due process guarantees of the Charter. It also requested the Nigerian military government to release the convicted persons from prison. They regained their freedom that same year. It is important to note here that the injunction granted to the CRP suspending the executions would not have been possible under Nigerian law had the CRP not deployed the Charter and the Commission as a 19

It is noteworthy that this kind of legal maneuver has only recently been discovered in other countries like Canada. In January 2002, Barbara Jackman, a well-known Canadian immigration and human rights lawyer, asked the Canadian courts to stay the deportation of her client, one Ahani, pending the consideration of a communication filed against the Canadian government at the Human Rights Committee established under the International Covenant on Civil and Political Rights, to which Canada is a party. The application was refused by the lower courts, and is now under appeal to the Supreme Court of Canada.

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major part of its struggle to stop the executions and free the convicted persons. This was because Decree 2 of 198720 (establishing the military tribunal that convicted the relevant persons as well as ousting the supervisory jurisdiction of courts) and Decree 55 of 199221(reiterating the ouster of jurisdiction) both clearly ousted the court’s jurisdiction to inquire into the matter. The only way the court could have assumed jurisdiction under the prevalent mode of legal reasoning in Nigeria was for the CSA to deploy the Charter, which had been incorporated into Nigerian law, and then approach the Commission in the way it did. The court regarded Chapter 10 of the Laws of Nigeria 1990 (which incorporates the Charter into Nigerian law) as a ‘‘decree with a difference’’ and a ‘‘decree with international flavour.’’ In the court’s view, Chapter 10 is deemed to be a decree under Nigerian law and binds the Nigerian government as long as Nigeria remains a part of the African system. In that case, since Chapter 10 (on the one hand) and Decrees 55 of 1992 and 2 of 1987 (on the other hand) stood in conflict as laws of Nigeria, the court decided to rely on the particular legal instrument which preserved its jurisdiction (as against the ones which ousted such jurisdiction), i.e. Chapter 10. But the court could not have granted the injunction had the CRP not approached it with a request for that relief. This is because, like most court systems, Nigerian courts do not act suo motu, i.e. of their own motion. And the CRP would have stood on much shakier ground had they not approached the court with notice of an interim measure that had been indicated by the Commission. For no matter how progressive a Nigerian judge is, s/he is usually committed to one form or the other of the legalistic mode of reasoning, and needs to be offered a cogent legal argument on which to found her/his decision. In such cases, the stronger the legal argument is, the greater the chance of success. This is especially so when the anticipated decision would be novel, challenging to the government of the day, and directed at the decision of a dictatorial military government. In the end, the interim measure indicated by the Commission was the legal excuse needed by the court to act in the way it did and yet remain relatively secure in an atmosphere where the judiciary was already under siege from the military government. The court felt safer in the knowledge that it could always claim to be bound by the legal logic that was initiated when the CRP approached the African Commission and obtained the indication of interim measures. 20 21

Civil Disturbances (Special Tribunal) Decree 2 of 1987. See ibid. ss. 3, 4, and 6.

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This argument was eminently convincing given that section 1 of Chapter 10 explicitly demands that all the state institutions of Nigeria comply with the provisions of the Charter – the very document which establishes and empowers the Commission. It was in this context, as well as in the more general context of socio-political struggle, that the CRP creatively deployed the Charter, the Commission, the Nigerian courts, and the mass media (its network partners), as resources in its successful struggle to actualize the rights of seven citizens of Nigeria, and save them from the gallows. Here the key role played by the CRP, an element of the local activist forces, cannot be over-emphasized. Without its role as an intelligent relay, the desired ends would likely not have been attained. It is, however, important to note that, even then, the relay was not more important than the active source of the normative energy it transmitted – that is, the African Commission. It was, however, as important. This case clearly shows one of the exact ways in which the African system’s actively provided norms were deployed by local activist forces to successfully reshape a hitherto dominant logic of appropriateness, as well as a conception of what was in the Nigerian state’s interest to do in the circumstances.

4.2.2 Newspapers Registration Decree 43 of 1993 case22 In 1993, the then Babangida-led military government of Nigeria annulled the democratic election on 12 June of that year of Moshood Abiola as President of Nigeria. The mass media was vociferous in its condemnation of this dictatorial action. In response to the hostile posture of the mass media, the Babangida regime promulgated Decree 43 of 1993. This decree set out a number of extremely stringent conditions that had to be met before a newspaper could lawfully operate in Nigeria. These conditions included the payment of huge sums of money 22

For the African Commission version of this case, see Communications 105/93 and 130/ 94, reproduced in Institute for Human Rights and Development, Compilation of Decisions on Communications of the African Commission on Human and Peoples’ Rights 1994–2001 (Banjul, The Gambia, Institute for Human Rights and Development, 2002), p. 215. For the same case before the Nigerian courts, see Richard Akinola v. General Ibrahim Babangida and three others, Suit M/462/93, Interview with KM, Legal Officer of Media Rights Agenda, 24 May 2000 (transcripts on file with the author). For a second similar case before the Nigerian courts, see Incorporated Trustees of Media Rights Agenda and another v. Attorney General of the Federation, Suit FHC/L/CS/908/99 (unreported).

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by newspaper publishers and fresh registration of all newspapers circulating in Nigeria, which registration was to be renewable at periodic intervals. Two Nigerian CSAs, Media Rights Agenda (MRA) and the Constitutional Rights Project (CRP) collaborated and filed a communication at the African Commission. The Commission held that the Decree violated several provisions of the African Charter. The collaborating CSAs then filed a matter in the Lagos High Court asking the court to declare the Decree null and void. A massive media campaign was also begun. Part of the resources that these CSAs relied on in making their case before the Nigerian courts and before the court of public opinion in Nigeria was this decision of the African Commission. At the Lagos High Court, Humponu-Wusu J dismissed the preliminary objections of the military government and found for the CSAs. In dismissing this objection, it held that since the African Charter was a part of Nigerian law vide Chapter 10 (which has the force of a Decree), and since Chapter 10 conferred jurisdiction on the court, he had jurisdiction to try the case. More importantly, the court also held that any domestic legislation (including Decree 43 of 1993) which was in conflict with the Charter was void to the extent of that conflict. It is important to note that following the decisions of the Commission and the Nigerian court, Decree 43 was very rarely enforced by the military government, and was soon repealed. It is a thing of regret, though, that Press Council Decree 60 of 1995 which contains similar provisions was promulgated by the government on the very day that Decree 43 was repealed. However, this later Decree has not been enforced at all to date. Media Rights Agenda is now challenging the legal validity of this latest Decree in the law courts.23 However, for all intents and purposes, the Decree seems to be a dead letter. This fact is a testimony to the delegitimating effects of the court’s decision, a ruling that would have been extremely unlikely without the empowering earlier decision of the Commission. Here again, it is important to note that the success which was enjoyed by the MRA and the CRP in getting this Decree repealed was a result of the deployment of a number of resources to that struggle: the Charter, the Commission, the mass media, and the courts (a virtual network of ‘‘like-minded’’ institutions). In moves that bore a striking resemblance to those made in the Zamani Lekwot case, the Commission and the mass media were approached by CSAs as a way of strengthening the hands 23

See ibid.

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of a local judge. The Commission ruled in favour of the CSAs. The Commission’s decision and other arguments based on Nigerian law were cited to the local judge. This judge then held in favour of the CSAs. All the while, a massive press campaign had been waged to sensitize the public and embarrass the ruling military regime. A combination of these measures worked (even if only partially in the last case). Yet again, we see evidence of the form of trans-judicial communication that has been created and facilitated through the ingenuity and hard work of local CSAs in Nigeria. Here, the communication was transjudicial because ideas, knowledge, information, legal logic, and normative energy, traveled some distance between a quasi-judicial international institution and various institutions within the target nationstate. In this case, it has traveled to the courts and executives of the targeted state, Nigeria. But this was not a direct form of communication. Rather, it has been a mediated form of communication, one that was creatively initiated, brokered, transmitted, oiled, and serviced by local CSAs and their virtual or actual network partners. This form of transjudicial communication has also been both two-pronged and monist – in the sense that the relevant CSAs have used both the international and the domestic fora almost in the same uninterrupted movement. Thus, this is evidence of the appropriateness of a constructivist approach to the study of IHIs such as the African system. Quasiconstructivists especially will recognize elements of their own approach in the way in which CSAs were, via the creative deployment of relevant IHI norms, able to persuade a key domestic institution to begin reshaping important domestic norms in ways that correspond with those IHI norms.

4.2.3 Frank Ovie Kokori v. General Sani Abacha and four others (No. 3)24 In this case, Frank Kokori, the then President of the Nigerian Union of Petroleum and Gas Workers (NUPENG) and an important leader of the popular opposition to the annulment by the military regime of the 12 June 1993 Presidential polls, was arrested and detained in order to frustrate a long lasting strike by NUPENG which was threatening to cripple the economy and force that regime from power. His arrest and detention was justified by the military government as a non-reviewable 24

[1995] FHCLR 413.

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state security action done under the infamous State Security (Detention of Persons) Decree 2 of 1984. This Decree contained an ‘‘ouster clause.’’ He brought a suit before the Federal High Court (Lagos Division) seeking to enforce his fundamental rights under articles 4, 6, and 7 of the African Charter. In assuming jurisdiction over this matter in an atmosphere of political upheaval and risk, and in the face of a clearly worded ouster clause in the text of Decree 2, Ojutalayo J felt empowered by the Charter, in particular, and the African system as a whole. He held that the African Charter was autonomous from, and superior to, all local laws in Nigeria, including the Decrees issued by the then ruling military regime. In the words of this federal judge: Therefore the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act is superior to our local or domestic legislations and if there is any conflict in the provisions of any of our domestic legislations and the Charter, the latter shall prevail.25

Here again, activist labor organizers and their lawyers (key elements within Nigeria’s activist forces) were, through the creative deployment of an IHI’s norms that strengthened their logic and provided a legal cover to sympathetic judges, able to persuade a courageous, independent, and activist federal judge to defy an incredibly harsh military junta (most likely against the judge’s own career interests). This invocation of the African system added critical value to their logic and thus enabled the alteration of the hitherto prevalent logic of appropriate judicial action in this contest as to whether or not the courts could assume jurisdiction over this sensitive matter in clear contravention of a military decree.

4.2.4 Muojekwu and others v. Ejikeme and others26 In this decision, the Court of Appeal, per Niki Tobi JCA (as he then was) and others, invalidated a customary practice of the Nnewi Igbos of Anambra state of Nigeria. These practices were the ‘‘Oli-ekpe’’ and ‘‘Nrachi’’ customs. The words of the court are so instructive as to be quoted in extenso. In their view: the Nnewi custom relied upon by the respondents which permitted them to inherit the estate of Rueben merely because he had no male child is

25

Ibid. at 425.

26

CA/E/7/99 (Court of Appeal, Enugu Division).

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repugnant . . . And what is more, such a custom has clearly discriminated against Virginia, the daughter of Rueben and therefore is unconstitutional in the light of the provisions of section 42 of the Constitution of the Federal Republic of Nigeria, 1999 . . . Article 18 of the African Charter on Human and Peoples’ Rights specifically provides for the elimination of discrimination against women, a provision which is consistent with the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).27

Here the court obviously felt a need to legitimize or reinforce its reasoning, its conclusion that this age-old custom was inherently a violation of the rights of women to equality under the Nigerian Constitution, by making reference to the prohibition of discrimination in the Charter, as well as in other such instruments. In effect, the Charter helped to strengthen the court’s hands as it moved to adopt a progressive view of the Nigerian Constitution. Using this decision as a very valuable de-legitimation resource, a number of women’s rights groups in the relevant area of Nigeria have begun a drive to gradually transcend these practices.28 The issue has gained visibility and has led to a sense of empowerment among many members of the relevant women’s groups. If they succeed fully, the African Charter cannot but receive some of the credit. As importantly, the invocation of the African system’s norms, facilitated as it was by the work of activist lawyers, enabled the alteration of a traditional logic of appropriate conduct in relation to women’s inheritance rights in the South East of Nigeria, suggesting the occurrence of a broadly constructivist process.

4.2.5 Right to Passport case29 In this case, the respondent, Olisa Agbakoba (a legal practitioner and then President of the Civil Liberties Organisation, one of the oldest and 27 28

29

Ibid. (emphasis added). The work of the Enugu-based Women’s Aid Collective (WACOL) is instructive in this regard. See Action Woman, First Quarter 2002, 8. For the Court of Appeal decision, which was subsequently affirmed by the Supreme Court, see Olisa Agbakoba v. Director of State Security Service and another (1994) 6 NWLR (Pt. 351) 475. For the Supreme Court decision, see Director State Security Service and another v. Olisa Agbakoba (1999) 3 NWLR 314 (5 March 1999). See also Attorney General v. Ajayi [2002] 3 CHRLD 332 (30 May 2000). This case followed the same logic that prevailed in the Agbakoba cases.

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most established of Nigeria’s self-professed human rights NGOs) was invited to attend a human rights conference in the Netherlands in April 1992. On the day that he was scheduled to depart Lagos, Nigeria, on his way to the conference, he was intercepted by officers of the Nigerian State Security Service (SSS). These officers impounded his travel passport, thereby effectively preventing him from traveling to the conference. The officers did not offer any reasons as to why his passport was being impounded. After repeated but futile attempts to obtain his passport from the office of the SSS, he petitioned the Attorney General of the Federation, and later filed a suit in the High Court seeking to enforce his fundamental rights. The trial court dismissed his suit on the basis that the inscription on the back of the passport stating that the passport was the property of the Nigerian government showed that Agbakoba had no legal right to the passport. On appeal to the Court of Appeal, Ayoola JCA (as he then was) quashed the ruling of the trial court, and held that not only was Agbakoba’s passport unlawfully impounded, but also that every Nigerian had a right to a travel passport which was founded on the right to enter and leave Nigeria that was recognized by the Nigerian Constitution. The Supreme Court affirmed the decision of the Court of Appeal. In addition, a majority of the Supreme Court Justices explicitly upheld the reasoning of Ayoola JCA regarding the legal entitlement of every Nigerian to a travel passport. Furthermore, Sylvester Umaru Onu JSC felt empowered by the recognition in article 12(2) of the African Charter (as incorporated under Nigerian law) of a right to enter and leave one’s own country. In his view, the right of Nigerians to hold a travel passport is a logical corollary not only of a similar provision in the Nigerian Constitution, but also of similar provisions in the Charter and the Universal Declaration of Human Rights. Given that Onu JSC could have reached the same decision while relying entirely on the unsuspended portion of the Nigerian Constitution, it becomes reasonably clear that reference to the Charter’s provisions in the development of his arguments must have been empowering – must have served the purpose of justifying or legitimating his legal reasoning. The Charter was a resource that he saw as capable of strengthening his hand. As well, Ayoola JCA’s repeated references to the Charter (in the Court of Appeal) could be explained similarly. Thus, the invocation by the court of a particular African system norm was extremely important in the process of reformulating the dominant logic regarding the freedom of Nigerians to use their country’s

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international travel passports. Notice also the key role which was played by activist lawyers and at least one CSA in persuading the court to so invoke the African system.

4.2.6 Failed Banks Tribunal case30 In this case, Dr. Femi Adekanye and twenty-six other persons had been arrested and detained for over thirty months under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree 18 of 1994. They were charged before the ‘‘Failed Bank Tribunal’’ with various financial offences which had plunged Nigeria’s financial sector into a serious crisis. Subsequently, they sued the appellants (the Comptroller of Prisons and the Attorney General) at the High Court asking the court to order their release from detention. The appellants challenged the High Court’s jurisdiction to entertain the suit or order the release of the detained persons on the basis that Decree 18 of 1984 ousted the court’s jurisdiction to review any matter or proceedings before the Failed Bank Tribunal. The trial court dismissed this challenge to its jurisdiction, assumed jurisdiction, and ordered the release of the detained persons. The Court of Appeal, per Oguntade, Galadima, and Aderemi JJCA, upheld (on another ground) the lower court’s refusal to accede to the ouster clause in Decree 18 of 1994. In so doing, the Court of Appeal affirmed a long line of cases that had up to that point in time held that the African Charter on Human and Peoples’ Rights was superior to the Decrees passed by the federal military government of Nigeria. More importantly though, the Court of Appeal relied entirely on the provisions of the Charter both for the purposes of assuming jurisdiction over this sensitive case, and for the purpose of invalidating certain substantive provisions of Decree 18. On the matter of the ouster clause contained in this Decree, the Court of Appeal held that the attempt to oust the High Court’s jurisdiction was ineffectual basically because the ouster clause contravened the African Charter. One is immediately reminded of the African Commission’s decisions and resolutions condemning such 30

See Comptroller Nigerian Prisons v. Dr. Femi Adekanye and twenty-six others (1999) 10 NWLR 400 (‘Failed Bank’ case). For a similar logic in another detention case, see Awaye and others v. Controller General of Prisons and others, Suit FHC/L/CS/1113/97 (4 June 1999, unreported).

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ouster clauses.31 In the Court of Appeal’s own very clear words on this specific issue: If I had to consider the issue of jurisdiction of the High Court in this matter without reference to the African Charter on Human [and Peoples’] Rights . . . I would not have had the slightest hesitation in concluding that the High Court had not supervisory jurisdiction in this matter.32

The Court of Appeal then went on to hold in equally clear terms that the African Charter empowered the High Court to assume jurisdiction over the matter even in the face of an ouster clause that was clearly designed to shield the ‘‘emergency’’ Failed Bank Tribunal from the prying eyes of the regular courts of law. In their view, the Charter had this empowering effect because the relevant provision in Decree 18 did not explicitly oust, and indeed could not have effectively ousted, the jurisdiction of the High Court. In Oguntade JCA’s own words: The ouster of the supervisory jurisdiction of the High Court cannot attach to acts done under a law so patently in conflict with the African Charter . . . In the instant case, the trial court rightly invoked and assumed the supervisory jurisdiction of the court over the Failed Bank Tribunal as the statutory protection shielding the Failed Bank Tribunal from the supervisory jurisdiction of the High Court is ineffectual.33

On the issue of the invalidity (under the African Charter) of some sections of the relevant Decree 18, the court started its process of judicial 31

32

33

For instance, see item 3 of the Commission’s Resolution on Nigeria, Eighth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/8th, Annex VII. See also Constitutional Rights Project v. President Ibrahim Babangida and two others, supra note 17. See Failed Bank case, supra note 30, at 419 (emphasis added). A similar result was achieved in a more recent case. In Gumne and others v. Attorney General [2003] 1 LRC 764, a 2002 decision of a Nigerian High Court, twelve Southern Cameroonians sought a declaration that articles 1 and 20 of the African Charter imposed a legal obligation on Nigeria to ‘‘place before the World Court and the UN General Assembly the claim of the Southern Cameroonians for self-determination.’’ They also asked the court to order the Nigerian government to do so. The Attorney General of Nigeria opposed this action on the grounds that the court lacked jurisdiction to entertain the suit. In holding in favor of the plaintiffs and assuming jurisdiction over the matter, the court argued that the provisions of the African Charter (which had been incorporated into Nigerian law) clearly allowed it to entertain such a matter. It relied heavily on article 20(3) of the African Charter, which grants all peoples the right to receive assistance in their liberation struggles against foreign domination. ‘Failed Bank’ case, supra note 30, at 407 (emphasis added).

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reasoning by making reference to the provisions of section 7 of the African Charter as a critical factor in its decision-making process. In the words of Oguntade JCA, ‘‘Article 7 of the Charter is eye-opening.’’34 The Court of Appeal went on to hold that section 26 of Decree 18 is oppressive in its effect and ‘‘totally destroys the presumption of innocence in favour of the accused’’ under article 7 of the African Charter.35 That section was also pilloried and invalidated for ensuring in practice that anyone charged with an offence under Decree 18 cannot get bail at all.36 The Court of Appeal also found that the provisions of sections 4(2) and 5(1) of the same Decree in effect violated article 7 of the Charter. One of the most instructive things about this decision is the very explicit ways in which the Court was able to rely on the African Charter for jurisprudential legitimatization and empowerment. The Court was thereby able to reach a conclusion that it clearly wanted to reach but which, as it clearly stated, would otherwise have been impossible to justify and rationalize (in a legal sense). A passage from Aderemi JCA’s concurring judgment confirms the Court’s progressive orientation in this case. In his own words: In the instant case, with disturbing facts staring one in the face it will be a tragedy to the society for a Judge to demonstrate timidity under the municipal law and thereby in cheap obedience to its wordings refuse to assume jurisdiction when faced with the provisions of the African Charter . . . A refusal to assume jurisdiction will make the judge more executive than the executive themselves. The trial Judge of the court below by assuming jurisdiction held himself out as one who is governed by the rule of law.37

It is also highly instructive that the Court of Appeal openly showed the extent to which the goals, norms, and practices of the African system and those who founded that regime had inspired its orientation and impacted its jurisprudence. According to Oguntade JCA: A law that does not discriminate in the award of punishment between the guilty and the innocent is a modern-day anachronism. No nation should tolerate it. And this is one of the reasons that informed the need for African nations to come together for an African Charter of Human [and Peoples’] Rights.38

34 37

Ibid. at 422. 35 Ibid. at 423. 36 Ibid. Ibid. at 427–428 (emphasis added). 38 Ibid. at 422 (emphasis added).

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The fact that the African system’s norms were pivotal to the process via which the court reformulated the relevant jurisdictional norms is quite clear from the above discussion. As clear is the key role that was played by the activist lawyers who brought the matter and formulated the winning arguments in the first place.

4.2.7 The Treaty Supremacy cases39 In a long line of cases, only a few of which are cited and discussed here, some Nigerian courts, anxious as they were in most cases to circumvent the military’s claim to absolute non-reviewable power, have affirmed at least one of the following propositions: (a) international treaties which have been ratified by Nigeria are sui generis in character, and cannot be subsumed under the hierarchy of domestic laws; (b) treaties which have been ratified by Nigeria (and the local legislation which incorporates them into Nigerian law) are international agreements that cannot be unilaterally modified or abrogated by the Nigerian government; (c) such treaties can only be modified by the Nigerian government if they are renegotiated with the other states parties, and the necessary agreements secured; (d) such treaties are hierarchically superior to domestic legislation in Nigeria; (e) in the event of a conflict between a provision of a domestic law and a treaty provision, the treaty will supercede the domestic law, and the conflicting domestic law provision will be invalidated as a result; the African Charter, as one such treaty, and its incorporating domestic law (Chapter 10), is superior to all domestic laws in Nigeria (including military Decrees), and cannot be unilaterally modified or abrogated by Nigeria; and (f) the African Charter is superior to the Nigerian Constitution. I will refer to all of these propositions as the ‘‘supremacy propositions.’’ In the Oshevire case, the Court of Appeal, second only in hierarchy to the Supreme Court, held that an international treaty which has been ratified by Nigeria, being an international agreement which no state party could modify on its own, was superior to any domestic law passed 39

See Oshevire v. British Caledonian Airways Ltd. (1990) 7 NWLR 507; UAC of Nigeria v. Global Transporte Oceanico SA (1996) 5 NWLR 291; CRP v. Babangida and others (the domestic version of the Zamani Lekwot case), supra note 17; the ‘Failed Bank’ case, supra note 30; Fawehinmi v. Abacha (1996) 9 NWLR 710 (Court of Appeal); and Abacha v. Fawehinmi (2000) 13 NWLR (Pt. 660) 228 (Supreme Court). Abacha v. Fawehinmi in the Supreme Court in effect rolled back the extent to which the Charter could invalidate domestic laws in Nigeria.

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by Nigeria, including military Decrees. This was so because at international law, a state party to a treaty could not validly ‘‘oppose’’ its domestic actions or laws to enable it to avoid performing its obligations under the treaty.40 Similar conclusions were reached in the UAC of Nigeria Ltd. case.41 As has already been noted, in the Failed Bank case, the Court of Appeal affirmed a long line of cases that had up to that point in time held that the African Charter on Human and Peoples’ Rights was superior to the Decrees passed by the federal military government of Nigeria. Most notable among these cases is Fawehinmi v. Abacha (Court of Appeal) (now partly overruled by the Supreme Court).42 In that case, the Court of Appeal (per Mustapha, Mohammed, and Pats-Acholonu JJCA) had held, inter alia, that not only was the African Charter superior to all domestic laws in Nigeria, it was also superior to Decrees of the military government and, in effect, the then Constitution of Nigeria.43 It also held that the Charter was ‘‘in a class of its own’’ and does not fall within the hierarchy of local laws in Nigeria.44 Consequently, the Court of Appeal held that no Decree of the military government can oust the jurisdiction of the courts in matters pertaining to the African Charter. All these cases were brought either by activist lawyers or CSAs. The judges who issued these decisions were also activist in orientation, at least in the sense of pro-actively applying international human rights law within Nigeria. Similarly, in Chima Ubani v. Director of State Security Services and Attorney-General,45 the same court affirmed the proposition that the African Charter is superior to all of Nigeria’s domestic legislation, including the Decrees made by military regimes that have been widely regarded as dictatorial in bent. The Court of Appeal also ruled that, as such, the lower court ought to have assumed jurisdiction over the extant matter which concerned the judicial review of the detention of a prominent human rights activist by the Inspector General of Police under powers purportedly conferred on that officer by the infamous State Security (Detention of Persons) Act (the so-called Chapter 414 Laws of Nigeria 1990). 40 41 44 45

Oshevire case, supra note 39, at 519–520. Supra note 39, at 300. 42 Supra note 39. 43 Ibid., at 746–747. Fawehinmi v. Abacha, supra note 39, at 747. (1999) 11 NWLR 129 (Court of Appeal) per Oguntade JCA (as he then was), for himself and Galadima and Aderemi JJCA.

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These supremacy propositions, as I have styled them, were most important resources in the hands of many members of the judiciary (and other network partners) during the long period of military dictatorship in Nigeria. The propositions strengthened the hands of many members of the judiciary in their somewhat subtle ‘‘cold war’’ struggle to retain some amount of independence and dignity in the face of a tendency toward military absolutism. This much is evident from much of the evidence already supplied and especially from the declaration of Oguntade JCA (as he then was) that: It is a clear manifestation of gallantry and judicial innovativeness to be able to assert jurisdiction over matters which the military rulers tried to shield the judiciary away [sic] from.46

Because the cold war was subtle, because the cold war was a struggle for hearts and minds as much as it was a risky struggle, such propositions were very potent delegitimization weapons in the hands of such judges, enabling them on many occasions to reach conclusions that they deemed appropriate – conclusions that would have been virtually impossible to reach (according to the legalistic logic to which judges are practically wedded) without these propositions. Crucially, these propositions would have been almost impossible to formulate and ‘‘sell’’ during most of the relevant period had it not been for the Charter, and on some occasions, the Commission. For one, the Charter was during almost all of the relevant period, the only international human rights treaty that had been incorporated into the corpus of Nigeria’s domestic laws.47 Moreover, in the context of a widespread sensitivity, even within the Nigerian human rights community, to overbearing foreign lectures on human rights, the Charter was a far more potent delegitimization device, given its exclusive claim to an African pedigree. It was not open at all to the charges, so often levied by successive military governments, that a particular human rights document or proposition was alien and imperialist. It is noteworthy that early on in this period, the African Commission had itself decided that the obligations assumed by Nigeria under the African Charter are unaffected by the attempt by the military regime to 46 47

Ibid. On the incorporation of the African Charter into Nigerian domestic law, see D. Peters, ‘‘The Domestication of International Human Rights Instruments and Constitutional Litigation in Nigeria’’ (2000) 18 Netherlands Quarterly of Human Rights 357 at 369.

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emasculate the domestic law which incorporates the Charter into Nigerian law.48 This stance of the Commission was well known to most activist lawyers and judges in Nigeria, and must have helped consolidate the sense that they often had of the legitimacy of their strategy or decisions. This is also a form of ‘‘correspondence’’ between the decisions of some Nigerian courts and those of the African Commission. In most such cases, Nigerian courts were not simply ‘‘complying’’ with a decision of the Commission, but benefited from the Commission’s jurisprudence and orientation nevertheless. In all these cases, local activist forces, especially activist lawyers, CSAs, and activist judges, played a key facilitative role in persuading judges to invoke and adopt alternative formulations of local norms that were more in keeping with the African system’s norms than with the hitherto dominant domestic legal order. The importance of this role cannot be over-emphasized. However, the potency of these supremacy propositions has been reduced (post the era of military rule) by the decision of the majority of the Supreme Court of Nigeria in Abacha v. Fawehinmi (already discussed). In that case, the court held, inter alia, that Chapter 10, the local law that incorporates the African Charter into Nigerian law, was a domestic legislation with a difference, possessing a greater vigor and strength than any other domestic statute, including a Decree. However, the majority of the Supreme Court also held that (a) Chapter 10 was not superior to the Constitution of Nigeria; Chapter 10 could be amended or even repealed by a Decree of a military regime; Chapter 10 could be effectively emasculated by an ouster clause contained in a Decree; Chapter 10 does not necessarily invalidate the conflicting provisions of another domestic law. This decision of the Supreme Court might have represented a serious roll back of the protective shield that had been weaved around the human rights of Nigerians by the courts, had it not been for the fact that the decision was reached under the new democratic dispensation. Had it been reached under a military regime, it would have been even more devastating to the human rights community, and would have seriously compromised the capacity of the African system to serve as a force for progressive social causes in Nigeria. However, the very fact that so key a local norm as the one that established the supremacy of Nigerian courts, legislation, and policy 48

See Account of the Internal Legislation of Nigeria and the Disposition of the African Commission on Human and Peoples’ Rights, Doc.II/ES/ACHPR/4, 3.

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over international rules was reformulated by many of these same courts in a way that transferred ultimate power away from themselves toward international treaties and bodies is itself quite remarkable. It is also as remarkable that (as politically powerless as it seemed), the African system’s norms were invoked as the key justification for this momentous alteration in the balance of power between the local courts and international bodies.

4.2.8 Other more marginal cases A number of other decisions, more marginal as they are in relation to an attempt to demonstrate the significant effect that the African system, especially the Charter, has had on judicial action within Nigeria, have still helped to show the extent to which the Charter has penetrated Nigeria’s judiciary. In Ogugu v. The State, and Opeyemi Bamidele and others v. Alele Williams and another, both of which were brought by CSAs and activist lawyers, the courts felt able to gloss over the non-provision of a specific procedure for the domestic enforcement of the Charter, and instead allowed that litigants minded to enforce the Charter may approach it through a related procedure.49 This is evidence of the liberal attitude of many Nigerian courts in matters related to the enforcement of the Charter. The Charter was also referred to and applied in different ways in a number of other cases.50 In all the above cases, and even in these more marginal cases, the African system’s norms played a role that lends credence to the constructivist take on IHIs that has been discussed in chapter 2. In all these cases, local activist forces, mostly CSAs, activist lawyers, and activist judges, facilitated the successful invocation of these norms. In all these cases, the desired outcomes would not have come to pass without the African system/activist forces virtual or actual collaboration that occurred. In all these cases, a broadly constructivist explanation is suggested. 49

50

See Ogugu v. State, supra note 16, at 26–27; and the Bamidele case, Suit B/6M89 (Benin High Court). See Ekpu and others v. Attorney-General of the Federation (1998) 1 Human Rights Law Reports of Africa 391; Nigerian National Petroleum Corporation v. Fawehinmi and others (1998) 7 NWLR 598; Ndigwe v. Ibekendu and another (1998) 7 NWLR 486.

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4.2.9 Overall assessment of the African system’s influence on the Nigerian judiciary Overall, the African system’s influence on activist-minded Nigerian judges has been quite profound. Even those activist judges who have not had the opportunity to pronounce on the Charter’s status, or apply that document to a set of facts, seem eager to be able to do so. A good example is a serving High Court judge, who was formerly a legal adviser to a democratically elected government, whose knowledge of, and enthusiasm for, the African system is astounding.51 Given the fact that many more of such judges exist, the likelihood remains very high that Nigerian courts will continue to apply creatively the African Charter, as well as the jurisprudence of the African Commission, promoting in their stride the closer ‘‘correspondence’’ of Nigerian jurisprudence with the norms of the African system. Again, the remarkable extent to which the African Charter has penetrated the judicial order of Nigeria is captured in the response of the then Nigerian military government to specific questions raised by the UN Human Rights Committee in its consideration of Nigeria’s initial report to that Committee under the International Covenant on Civil and Political Rights (ICCPR). According to the government representative who presented this document: I am not aware of any decided cases in Nigeria in which the Covenant was mentioned although, as indicated in the initial report, the African Charter has received such recognition and, with that, may well be on the path of becoming an integral part of our human rights jurisprudence.52

This was in fact an understatement. However, despite the gallantry, creativity, and activism of a significant wing of the Nigerian judiciary in receiving and giving effect to the African system in ways that furthered the quest for legitimate governance in Nigeria, it would be over-ambitious to suggest that its engagement with the African system has been entirely adequate. For one, as Solomon Ukhuegbe has suggested, beyond facilitating the domestic impact of the African system’s decisions and relying on the provisions of the African Charter in order to justify its interpretation of certain 51 52

See interview with NCC (not real name) at Enugu, Nigeria, 11 April 2000. Reproduced in Nigerian Democracy: The Journey So Far, infra note 63, at 191 (emphasis added).

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domestic legislation, the Nigerian courts have often failed to elaborate in sufficient detail the provisions of the African Charter.53 This has hampered the development of a detailed corpus of African Charter jurisprudence which operationalizes and interprets in much more concrete detail the norms stated in the African Charter. However, both the correspondence that has been produced within Nigeria between some of the African system’s norms and some Nigerian judicial decisions, and the key role that was played by activist forces in facilitating this normative percolation of the African system into the Nigerian judiciary’s thinking and action, have been demonstrated and highlighted. What has been done in the preceding paragraphs is to show that having benefited from the key facilitative role played by local activist forces, the African system has exerted a significant if modest amount of influence on judicial thinking and action within Nigeria – thus generating varying forms of correspondence in that country. It has also been shown that the imaginative invocation of the African system has often enabled the emergence of previously unlikely formulations of logics of appropriateness (and even of conceptions of interest and identity) within the Nigerian judiciary. Let me now turn to a consideration of the matter of that system’s corresponding influence on executive action within Nigeria.

4.3 Impact on executive action Even though the influence that the African system (and the broader virtual network to which it belongs) has had on the executive branch of government, and on executive action within Nigeria, has been less marked and perhaps much more modest than that system’s corresponding impact on judicial decision-making and action within Nigeria, it has been significant nevertheless. Here the argument is that the African system has been a key part of a virtual human rights network (which included local human rights CSAs and activist judges) that has exerted a significant, if modest, level of influence on executive action within Nigeria. Here again, the argument is not that the African system’s efforts ‘‘caused’’ the observed behaviour in the same way that a twist to the hand causes pain. The over-arching point that will be demonstrated is that the system’s efforts have (in various ways and senses) helped to foster a 53

See S. Ukhuegbe, Memo No. 1, 15 April 2002 (on file with the author).

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significant and valuable level of correspondence between the behavior of the executive branch within Nigeria (on the one hand), and the goals and norms of the system itself (including the decisions and resolutions that have emanated from that institution) on the other hand. In each case, the system’s efforts were invigorated, complemented, and facilitated by the work of its virtual network partners. Indeed, it was the intelligent relay role that was played by these activist forces that often helped make it clear that the executive was responding in some measure to the invocation of the African system. However, it is important to understand that the African system’s contributions to this cooperative process were as important as the work done by its local partners.54 Upon reviewing the evidence discussed below, a sceptic might be tempted to suggest that there are alternative explanations for the concessions that were extracted from successive Nigerian (mostly military) governments via the domestic invocation of the African system by local activist forces. Such a sceptic might argue that such concessions were not extracted largely because of the African system’s influence on those governments. While other factors were also at play, the point that is sought to be made is simply that the influence of the African system was, in all the cases that will be discussed, one important factor that helped produce the concessions. In many cases, it was even the most important factor. Again, a sceptic might also be tempted to argue that the concessions that were in fact extracted from these governments were not all that significant. Such a position would be mistaken in the circumstances. As the evidence that is discussed below shows, the concessions made (regarding death penalty cases, keeping the media in check, and the like) were almost always very significant in the context of Nigerian history. The evidence that is available to me suggests that the system’s impact on the behavior of the executive branch – the system’s relevance to the humanization of executive action within Nigeria – may be categorized and discussed under the following heads.

4.3.1 Acceptance of an investigative mission55 The system’s efforts (complemented and facilitated by the work of its virtual network) eventually broke down the resolve of the executive 54

55

We will return to the issue of the relevance of the system’s ‘‘human rights network’’ more fully in section 4.6, as well as in chapter 7. The Commission’s Report on this mission has not been published to date.

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branch of the then military regime not to permit the African Commission to conduct an on-site investigative mission within Nigeria. This aboutface by the ruling junta was the culmination of a process of persuasion that resulted in the junta rethinking and altering its conception of what was in its self-interest. The junta eventually saw the visit as in its selfinterest and all but abandoned its previous understanding of that visit as contrary to its self-interest. The visit, it now understood, could help portray it in a less harsh light and present it more as a reasonable (if tough) group that was prepared to make important concessions in the human rights area. The Commission was able to conduct the mission between 7 and 14 March 1997. The way in which the mission itself was conducted has been, quite correctly, criticized by many Nigerian CSAs.56 The mission (which was made up of two members of the African Commission and a staff of the Secretariat of the Commission) spent far too much time visiting trouble zones and meeting with government officials, and comparatively little time with its CSA ‘‘virtual network partners.’’ The mission met with government officials, traditional rulers, members of the Nigerian National Human Rights Commission, the leaders and peoples of Ogoniland, the parents of the late Ken SaroWiwa, and some of the second batch of detained Ogonis.57 The reason for the extreme lopsidedness in the time spent among government officials and among the members of the CSA community may, of course, be that the Commission felt that it was already familiar with the views of the CSAs, and would benefit much more from visiting trouble zones and trying to persuade government officials to change their behavior. Even if this were the case, it ought to have made this point explicit in its statement of mission objectives. However, the important point to note here is that the mission was permitted at all. Given the highly critical stance that the Commission had earlier adopted against the ruling Abacha military regime (in several decisions, resolutions, and communique´s)58 it was by no means an easy 56

57 58

See ‘‘Observations of the Nigerian Human Rights Community on the Mission of the African Commission to Nigeria’’ (1997) 1 Shelter Watch 45. Ibid. at 47. See African Commission on Human and Peoples’ Rights, Recommendations and Resolutions (Banjul, The Gambia, African Commission on Human and Peoples’ Rights, 1998), pp. 26, 27, and 34 (hereafter ‘‘Compilation of Resolutions’’). See also R. Murray, ‘‘Decisions of the African Commission on Individual Communications under the African Charter on Human and Peoples’ Rights’’ (1997) 46 International and Comparative Law Quarterly 412 at 415–416.

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task to get the government to consent to the mission. That this was a triumph for the system, in terms of it signaling that the Commission had some influence on the behavior of the executive branch, is also underlined by the fact that this mission was one of the very first missions that had been undertaken by the Commission throughout its entire existence. In the previous nine or so years of its existence, the Commission had not been able to conduct even one such mission. Again, in assessing the significance of the executive’s decision to allow this highly intrusive mission, it is important to keep in mind the fact that such missions are reserved for countries or situations that have been deemed to be among the very worst in terms of the seriousness or egregiousness of the human rights violations. The visit in itself was also a propaganda victory for the Nigerian human rights community, who could regularly point to it as evidence of the ruling junta’s oppressive nature (as only regimes of that kind attracted such visits). For a junta whose legitimacy rested on thin ice, for a regime that was constantly attempting to launder its image in the local and international press, the prospect of such a mission could not have but been severely worrisome. The executive branch of Nigeria’s government, controlled as it then was by a military junta, was well aware of the implications of this visit and yet was persuaded to accept it nevertheless. Given the fact that Nigeria was at the time, and still remains, one of the most powerful African states, and given the perennial inability of the Commission to gain admission to much less powerful states like Malawi, the acceptance of this mission by the executive in Nigeria at a time when it was controlled by the Army, is significant evidence for the proposition that the executive was clearly concerned to act in ways that pleased the Commission, in ways that might soften the Commission’s censure (however non-binding that was). This admittedly deductive (albeit still valid) point will become even clearer after a consideration of the rest of the evidence regarding the system’s influence on executive action in Nigeria. It also bears emphasis here to state that it was largely the relentless exposure at the African Commission of the junta’s remarkably bad human rights record that precipitated the visit in the first place. Here again, the key role that local activist forces often play in generating IHI influence is palpable. Needless to say, Nigeria’s acceptance of this visit raises many other interesting questions that are beyond the immediate focus of this book, or which are not necessary for the book to attain its objectives. As such, the discussion of some of these questions has been deliberately left out.

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4.3.2 Endurance of several openly condemnatory resolutions By taking the somewhat unusual steps of strongly and openly condemning several practices and actions of the Nigerian military regime, the African Commission (the monitoring mechanism of the system) caused a lot of outrage within the executive branch of government in Nigeria. For instance, at its seventeenth Ordinary Session held in March 1995, the Commission, in the face of strong opposition from Nigeria, passed a strongly worded resolution condemning many of these practices and actions.59 Again, in the face of strong opposition from Nigeria, and adopting a creative interpretation of the African Charter, the Commission published a summary of its decisions on several individual petitions that had been brought against Nigeria at the Commission. Nigeria strongly opposed these actions of the Commission.60 Yet again, in the face of similar opposition from Nigeria, it organized and held an open extraordinary session (the second time ever that it had held such a session) on the execution of some Ogoni activists by the then ruling military government.61 While these acts would not ordinarily seem that significant, they are remarkable when considered in their social and historical context. The strong opposition of Nigeria to these actions, and perhaps its concern at the delegitimating effects that the publicity which accompanied these actions might have on their already shaky claim to govern the Nigerian population by right (and their perception within the ranks of the military itself),62 was reflected – albeit subtly – in the address of Auwalu Yadudu, the Legal Adviser to the then Military Head of State, during the Tenth Anniversary Session of the African Commission. In that speech, Dr. Yadudu urged the Commission to: adhere strictly to the provisions of its Charter and operate within established procedure. May I say that we have, on a number of previous occasions, had sufficient cause to draw the attention of the Commission 59 60

61

62

See Compilation of Resolutions, supra note 58, at 34. See Institute for Human Rights and Development, Compilation of Decisions on Communications of the African Commission on Human and Peoples’ Rights (Banjul, The Gambia, Institute for Human Rights and Development, 1999), pp. 17, 18, 20, 27, 30, 32, 38, 43, 64, 125, 135, and 150. See Final Communique´ of the Second Extraordinary Session of the African Commission on Human and Peoples’ Rights held in Kampala, Uganda, 18–19 December 1995 (on file with the author). See also Murray, supra note 58, at 415. See Murray, supra note 58, at 415–416.

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to what, in our considered judgement, appeared to be a disregard of certain provisions in the Charter and procedural requirements.63

Diplomatic as the language employed here seems to be, the serious concerns felt by the executive branch regarding the publicity that attended to the condemnations issued by the Commission, and the ways in which such publicity could serve as a potent resource for the growing opposition within Nigeria, is still quite palpable. Yet, despite its strong reservations to what seemed to it like the targetoriented and constant pummelling of its behavior and record by the Commission, the executive still acceded to many a demand from the Commission (e.g. sending high level representatives to the extraordinary session on the Ogoni problem; finally agreeing to accept a mission from the Commission; and even changing the provisions of some of its Decrees to reflect the suggestions contained in the very resolutions and decisions of the Commission it had so strongly opposed).64 Again, as a former militaristic state which had (and still has) a lot of relative power within the African order, power that it has been quite willing to use to serve its objectives, it is remarkable that aside from protesting the Commission’s actions, it did not in fact do much else in an attempt to rein in a Commission that had obviously embarrassed it on several occasions, and which it perceived, perhaps correctly, as an ally or network partner of its internal opposition. Yet it is clear that it did care about the criticism, and was well aware of its potent delegitimating effects within Nigeria itself. It could have taken rash measures such as other powerful states are wont to take when they lose out within an international institution. It could have withdrawn from the African system, or refused permission to the Commission to visit the country, etc. Yet, it continued to work with the Commission, and even change some of its laws to bring them in line with the Commission’s jurisprudence and resolutions. This is deductive, but nevertheless valid, evidence for the proposition that the executive (a military executive for that matter) was influenced by the Commission’s work – in the sense of the executive seeing its condemnations as something to be avoided, as something that could potentially hurt it.65 63

64 65

See Nigerian Democracy: The Journey So Far (Abuja, Federal Ministry of Information and Culture, 1998), p. 121. This last point will be discussed more fully in the next section 4.3.3. This conclusion is supported not just by the evidence relied on in this section but by the totality of the evidence available regarding the Commission’s engagement with the then ruling military junta.

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Here again, the facilitative role played by local activist forces was key to the production of the outcome. These local actors pressured the African system to pass every single one of these resolutions that were generated against the relevant Nigerian junta. Although the African Commission was in itself willing to pass the said resolutions, pressure from these activist forces was quite important in ensuring that the resolutions were in fact passed and did contain sufficiently strong language. As importantly in this case, the imaginative invocation of the African system by these activist forces in the domestic social struggles that they waged in the above cases helped generate the responsive measures that the junta took. In these ways were alterations in previously dominant logics of appropriateness catalyzed and advanced.

4.3.3 Modification of legislation Under the Nigerian military, the executive branch was for all their years in power an integral part of, and indeed controlled, the legislature. That is partly why such military regimes were considered to be more or less dictatorial in nature. Given the nature of this governance architecture, legislative action was also, in effect, executive action. Legislative action could not, and did not, proceed except with the approval of the executive. It is for this reason that I consider the changes that were made to the Decrees of the military government, in order to bring them in line with some of the relevant decisions and resolutions of the African Commission, to be both legislative and executive action at one and the same time. However, for reasons of brevity and non-repetition, I will discuss these changes fully in section 4.4. But suffice it to note here that certain decisions and resolutions of the African system did generate some ‘‘correspondence’’ within the Nigerian legal order – in the sense that executive action was in fact significantly influenced by these decisions and resolutions.

4.3.4 Suspensions of trials and executions At its second extraordinary session held in Uganda in December 1995, just after the Nigerian government had executed the Ogoni nine (among the first batch of those who had been tried), the African Commission decided to ask the Chairperson of the Organization of African Unity and the Secretary General of the same body to ‘‘express to the Nigerian

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authorities that no irreparable prejudice is caused to the 19 Ogoni detainees whose trial is pending.’’66 This indication of interim measures was in fact transmitted to the Nigerian government, and followed up with an on-site investigative mission. The proposed trial of the Ogoni nineteen (second batch) was stayed, and they were later released without a trial being held. Now, it would be implausible to argue that the trial of these detainees was stayed only because of the Commission’s indication of interim measures. A number of other factors were clearly at play as well. There had been a massive international outcry over the trial and execution of the first batch of the Ogoni detainees, local CSAs and the press had made a lot of fuss about the matter, Nigeria had been clearly embarrassed by its strong condemnation in public by South Africa and Zimbabwe (a treatment that is usually reserved for the very worst cases within the Organization of African States, and even then rarely meted out). Nigeria had also been expelled from the Commonwealth. Nevertheless, it is reasonably clear from an analysis of the events surrounding this matter that in a psychological sense, the condemnations by the African leaders and by the Commission seemed to hurt the regime’s moral composure much more than those of other international entities whose actions could easily be dismissed in post-colonial Nigeria as improperly motivated. As more recent events in Togo and Zimbabwe later showed, the condemnations of African institutions and leaders are not nearly as easy to dismiss as motivated by a colonialist instinct as are European or other global denunciations.67 In any case, the indication of interim measures by the Commission was clearly one of the factors weighed by the regime in arriving at its decision to stay the trials of the Ogoni nineteen. It was in this subtle way that it contributed significantly to the generation of correspondence with the system’s norms and goals exhibited by the behavior in this case of the executive branch of government in Nigeria.

66 67

See Final Communique´ (on file with the author). In the Togolese situation, the decision by most Western powers to cede leadership on the question of persuading Togo to reverse the inherited and unelected succession of the late President Eyadema by his son to Nigeria, indicates the growing realization of the greater effectiveness in many such contexts of African condemnation vis-a`-vis European or other denouncements. The more recent events concerning the Zimbabwe question also helps demonstrate this point. In recognition of the potency of African-to-African criticisms, in the context of Africa’s historical and social context, the Commonwealth Committee that assessed the fairness of the 2002 Zimbabwean elections was composed of two African states and one other state.

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In the Zamani Lekwot case, the Commission’s indication of interim measures was also deployed within Nigeria by the Constitutional Rights Project (CRP), a local CSA, in a way that led to the suspension of the execution of General Lekwot and other leaders of the Kataf ethnic group, and later on to the commutation of their death sentences to five-year jail terms and eventual release by the Babangida-led military regime. This case has already been discussed at length in section 4.2. Suffice it to say that given the fact that the release of General Lekwot and the others was in fact ordered by the executive, it is reasonable to conclude that the executive was markedly influenced, albeit indirectly, by the efforts made by the Commission, a part of the African system. Further evidence for the fact that the Commission’s views and pressure played a significant role in producing the desired outcome could be obtained from the fact that the Commission took a very active interest in the end-results of its decision in this case, and even took the file with it to Nigeria during its on-site investigative trip to that country.68 In any case, ‘‘correspondence’’ was produced between the decision of the Commission and the actions of the executive within Nigeria. It is noteworthy as well that the argument that has been made here is not that correspondence occurs automatically, or that the African system’s views have in all cases been ‘‘complied with’’ by the executive. In fact, in Communication 87/93, the interim measures which had been indicated by the Commission against the execution of Ken Saro-Wiwa and others pending the Commission’s consideration of the matter before it, were ignored by the Abacha military regime. Instead, what has been urged is that a valuable level of correspondence is possible (outside the compliance paradigm’s optic or radar), and that this sort of phenomenon has in fact occurred in a significant number of cases in the Nigerian context. In all the examples discussed above, local activist forces played an important role in deploying the African system’s norms or processes to help produce the desired outcomes. In all these examples, alterations in understandings were produced in large part as a result of the domestic invocation of such norms. As such, in all these cases, the existence of a broadly constructivist process was suggested.

68

See D. Shelton, Remedies in International Human Rights Law (New York, Oxford University Press, 1999), p. 177.

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4.3.5 Release of detainees In Constitutional Rights Project (in respect of Wahab Akanmu and others) v. Nigeria, Communication No. 60/91, one hundred detainees who had been tried, convicted, and sentenced to death for armed robbery in accordance with the Armed Robbery and Firearms Decree 1974 petitioned the African Commission, through the CRP. The Decree under which their trial proceeded made no provision for an appeal from the conviction and/or sentence. The Commission found that the Decree violated article 7(1)(a) of the African Charter, and recommended that the petitioners be compensated. Due to the efforts of the CRP, which deployed the Commission’s decisions in pressing the government to effect their release, all of the detainees were eventually released.69 Again, in releasing the petitioners, the government was not necessarily ‘‘complying’’ directly with the decision of the Commission. Nevertheless, the decision helped in a very significant way to produce correspondence with the Commission’s views within Nigeria. CSAs (especially activist lawyers, human rights NGOs, activist journalists, etc.) utilized the Commission’s decision and Charter’s norms in relentlessly and publicly reinforcing their socio-legal logic regarding the inappropriateness of the continued detentions. Pressure was thus brought on the executive (a governmental body that survived in power as much through social consensus as via coercion). The executive eventually succumbed to this pressure and released the detainees. In this way did the Commission influence markedly, although somewhat subtly and indirectly, the actions of the executive branch of government in Nigeria. Also, in the Zamani Lekwot case and in the Matter of the Ogoni nineteen, a number of detainees were released in ways that suggest some correspondence with the views of the Commission. These cases have already been discussed above. The arguments made in section 4.2 about the key role played by local activist forces and the relevance of a constructivist optic also apply here.

4.3.6 Non-enforcement of draconian press laws In the Newspaper Registration Decree case, which has already been discussed in much detail, the African Commission’s decision that the 69

See interview with LY (not real name) at Lagos, Nigeria, 24 May 2000.

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Decree violated several provisions of the African Charter, was relied upon by two Nigerian CSAs in their successful suit before a local High Court to declare the Decree invalid. It was also a critical resource in their public debate with government officials about the ‘justness’ of the Decree’s provisions. The net effect of the Commission’s decisions and the work of its network partners on this issue was that the Decree was never enforced by the executive, and was later repealed by a military legislative body dominated by the executive. Clearly, therefore, the African system had in this case helped to produce a significant and valuable level of correspondence with its views on the Decree within Nigeria. This case has already been discussed much more fully in section 4.2. Here again, the role played by local activist forces was central, and the character of the process via which success was achieved was basically constructivist.

4.3.7 Nigerian National Human Rights Commission (NNHC) This body was set up by the Abacha military regime partly in response to intense and widespread criticisms of its human rights record. One of the most consistently vocal of such critics was the African Commission. As such, to the extent that the criticisms of the human rights record of that regime led to the establishment of this body, the Commission may be said to have in part influenced its creation. And since the NNHC was established by the executive, the Commission has in this way also influenced the executive’s action within Nigeria. Again, the African Charter is one of the important sources of the norms that the NNHC relies on to assess the behaviour of both governmental and non-state actors. The NNHC’s enabling Decree so mandates.70 In practice, the African Charter does in fact serve as a standard of reference that is considered by at least some staff of the NNHC. According to a senior staff of the Commission: The [members of] staff are quite familiar with the Charter and decisions taken by the African Commission. These thus get reflected invariably in

70

See the Nigerian National Human Rights Commission Decree 22 of 1995, Supplement to Official Gazette Extraordinary of the Federal Republic of Nigeria no. 28, vol. 82, 6 October 1995, Part A. For extended study of the NNHC, see O. C. Okafor and S. C. Agbakwa, ‘‘On Legalism, Popular Agency and ‘Voices of Suffering’: The Nigerian Human Rights Commission in Context’’ (2002) 24 Human Rights Quarterly 662.

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the day-to-day work of the Commission itself. We often cite specific sections of the Charter in making arguments . . . to our Council.71

Again, there is some evidence of relatively informal, modest, yet significant ‘‘communication’’ between the NNHC and the African Commission. Oji Umozurike, a former chair and member of the African Commission, once sat on both bodies at one and the same time. He no doubt brought his knowledge of the Commission’s views, decisions, and conclusions to meetings of the NNHC Council. As importantly, at least one representative of the Commission has attended every session of the African Commission since the NNHC was inaugurated. Attendance at such meetings could not but have enlightened the representatives of the NNHC as to the views, decisions, conclusions, and processes of the African Commission. In this way, the system’s norms would percolate, albeit subtly, into the day-to-day work of the staff of the NNHC. While the exact extent to which this communication between both bodies has influenced the work of the NNHC is still somewhat unclear, it remains safe nevertheless to deduce from the circumstances of this interaction that the NNHC has to some extent been influenced by the work of the Commission. As importantly, the subtle process via which the African system has become modestly influential vis-a`-vis the NNHC is much more consistent with the broad constructivist approach than with any other alternative theoretical approach. In the foregoing paragraphs, I have attempted to demonstrate the significant, if modest, level of influence exerted by the African system on executive action within Nigeria. I will now turn to the question of that system’s influence on legislative action within Nigeria.

4.4 Impact on legislative action What I want to do in this section is to examine and consider the available evidence in order to map the extent to which that evidence supports the proposition that the African system has had a modest but significant level of influence on the character of specific legislation within Nigeria. It will be obvious at the end of this analysis that the African system has indeed been able to exert that kind of influence within Nigeria. Here again, the 71

See interview with AC (not real name) at Abuja, Nigeria, 27 March 2000 (transcripts on file with the author) (emphasis added).

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argument is that the African system has been a key part of a virtual human rights network which has exerted some influence on legislative action within Nigeria. Local activist forces have served the brainy relays that bridged the international gap between the African system and the relevant Nigerian legislature. These CSAs have often invoked the African system in the domestic sphere in order to persuade the legislature to shape or reshape laws in ways that correspond to the normative orientation certified in the African system as appropriate. As was made clear with respect to the arguments that were made in the earlier sections of this chapter, the argument is not that the African system’s efforts ‘‘caused’’ the observed behaviour. It is that the efforts made by the system (and its virtual network) have helped to foster a level of valuable ‘‘correspondence’’ between the normative content of the African Charter and the decisions of the Commission (on the one hand), and the content and character of specific domestic laws (on the other hand). In each case, the system’s efforts were complemented and facilitated by the local level work of its virtual network partners.

4.4.1 Civil Disturbances (Special Tribunal) Act of 198772 This legislation was enacted by the Babangida military regime in March 1987. It provided for the establishment of a special tribunal to conduct the trial of persons charged with offences related to a communal or civil disturbance. The tribunal was to be composed of a serving or retired superior court judge as its chair, and four other members, ‘‘one of whom shall be a serving member of the Armed Forces.’’73 It also provided for the confirmation of any conviction or sentence passed by the tribunal by the Armed Forces Ruling Council, the military junta which at that time ran the executive and legislative branches of government in Nigeria.74 Thus, persons convicted and/or sentenced by the tribunal had no right of appeal to another judicial body. As importantly, the Decree had also ousted the supervisory powers of the High Courts over the proceedings of the tribunal.75 The membership on the tribunal of a serving member of the armed forces, the ouster of the jurisdiction of the regular courts to review the decisions of the tribunal, and the absence of a judicial right of appeal from the decisions of the tribunal, were repeatedly pilloried in very 72 73

See Chapter 53, Laws of the Federation of Nigeria, 1990. Ibid. s. 2. 74 Ibid. s. 7. 75 Ibid. s. 8.

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explicit terms in a number of decisions issued by the African Commission. In the Zamani Lekwot case, the Commission found that all of these features were clear violations of the African Charter.76 The Commission also expressed similar views on one of these features in Civil Liberties Organization v. Nigeria.77 Similarly, in a number of decisions and resolutions, the Commission has pilloried and declared ‘‘Charter illegal’’ the kind of ‘‘ouster clause’’ that was contained in the relevant Decree.78 At its second extraordinary session, primarily convened in order to deal with the execution of the Ogoni nine and with other aspects of the Ogoni matter, the Commission also expressed similar concerns regarding the compatibility of this law with the African Charter.79 These features of the Decree were also criticized at a number of other international fora.80 For years, local activist forces such as the Civil Liberties Organization (CLO) and CRP mounted loud and intense campaigns to persuade the ruling junta to change these provisions. These activist forces often enlisted the support of the African Commission and generously deployed the African Charter to strengthen its arguments. On 5 June 1996, the then military government promulgated the Civil Disturbances (Special Tribunal) (Amendment) Decree. This Decree removed the armed forces member of the tribunal and provided for the right of appeal to a special appeal tribunal. This is an example of the correspondence of legislative action with the views of the Commission – views that had been explicitly and strongly opposed by Nigeria! It is not plausible, really, to argue that these legislative provisions were changed by the military because of a simple desire on their part to ‘‘comply’’ with the views of the Commission. There were a number of other internal political and social forces at work 76

77

78 79

80

See the Constitutional Rights Project (in respect of Zamani Lekwot and six others) v. Nigeria, Communication 87/93, reproduced in Institute for Human Rights and Development, Compilation of Decisions on Communications of the African Commission on Human and Peoples’ Rights (Banjul, The Gambia, 1999), pp. 38–41 (hereinafter ‘‘Compilation of Decisions’’). Communication 129/94, reproduced in Compilation of Decisions, supra note 76, at 64–67. See, e.g., ibid. See Final Communique´ of the Second Extraordinary Session of the African Commission on Human and Peoples’ Rights, held in Kampala, Uganda, 18–20 December 1995 (on file with the author) at para. 16. For instance, see the United Nations General Assembly’s Resolution on the Situation of Human Rights in Nigeria, A/RES/50/199, 22 December 1995.

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in this case. What is clear, however, is that the repeated condemnation of these legislative features by the Commission played a very critical role in producing such correspondence. Having explicitly opposed the resolutions and decisions that first recommended the repeal of these same legislative provisions, the Nigerian government was obviously aware of the Commission’s views on the matter, and took them seriously enough to respond so strongly in opposition thereto. In fact, in defence of the relevant decisions, the Commission had to fend off a very determined Nigerian military regime that had charged that the Commission had no power to interpret the Charter, or pronounce on the validity of Nigerian laws.81 The Commission’s views on this matter were thus one of the critical factors that operated on the mind of the regime as it considered what course of action to take. In the end, it reached a decision that reflected the Commission’s recommendations almost to the letter. It is not unreasonable, therefore, to deduce logically that the Commission’s work was influential in this case. Here again, the invocation of the African system helped alter preexisting logics of appropriateness, and therefore led to the modification of certain relevant laws, suggesting the appropriateness of a broadly constructivist explanation.

4.4.2 State Security (Detention of Persons) Act of 198482 This legislation was passed by the Babangida military regime in 1984. It aimed to: empower the Federal Military Government to detain persons for acts prejudicial to State Security for a period not exceeding six months at a time, and to provide for a review of such detention.83

This Act was subsequently amended by the State Security (Detention of Persons) (Amendment) (No. 2) Decree 14 of 1994. Passed into law by the Abacha military regime, this Decree introduced a new section 2A into the existing Act which precluded courts from issuing the writ of habeas corpus or any other such writ aimed at the production in court or release from detention of any person detained under the 1984 Act (formerly referred to as Decree 2 of 1984). 81 82 83

See Murray, supra note 58, at 428. See Chapter 414, Laws of the Federation of Nigeria, 1990. Ibid., long title of the Act (emphasis added).

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The African Commission specifically declared this Act (as amended) to be ‘‘Charter illegal.’’84 Its prohibition of the issuance of the writ of habeas corpus by the courts clearly offends the guarantees of the right to liberty under the African Charter. Similarly, the Act contained an ‘‘ouster clause.’’85 The Commission has also condemned this sort of clause as, inter alia, a violation of the Charter’s guarantee of the right to a fair trial.86 On 7 June 1996, the Abacha military regime promulgated the State Security (Detention of Persons) (Amendment) (No. 2) (Repeal) Decree 18 of 1996. This last Decree repealed Decree 14 of 1994, thus restoring the legal capacity of the courts to issue a writ of habeas corpus or the like so as to order the production in court or release from detention of a person detained under the 1984 Act. In addition, that military regime ordered a wholescale review of the cases of all those detained under the Act. About twelve persons regained their freedom as a result of this particular review.87 This is another example of the ways in which the Commission’s efforts helped to produce a very valuable form of correspondence between its decisions and the legislative actions of the Nigerian military government. In consequence, these efforts also helped to produce the same kind of ‘‘correspondence’’ between the contents of a specific legislation and the relevant views of the Commission. The Commission’s views were one of the factors which operated on the minds of the military as it made these changes. This much is deducible from the regime’s explicit and strong opposition to the decisions of the Commission which had condemned the aspects of the legislation that it subsequently altered to correspond with the Commission’s views. In any case, the then ruling Nigerian military junta did almost exactly what the Commission preferred to be done. There isn’t much room for reasonable doubt as to the fact that the Commission’s views influenced the decision to change the offensive features of the relevant law. The arguments made in section 4.1 above regarding the key role played by local activist forces and the appropriateness of a constructivist explanation are also applicable here. 84

85 86 87

See Constitutional Rights Project and the Civil Liberties Organisation (on behalf of Ken Saro-Wiwa) v. Nigeria, Consolidated Communications 137/94, 154/96, and 161/97, reproduced in Compilation of Decisions, supra note 76, at 150–168. See s. 4 of the 1984 Act. See the Zamani Lekwot Communication, supra note 76. See Nigerian Democracy: The Journey So Far, supra note 63, at 188.

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4.4.3 Political Parties (Dissolution) Decree 114 of 199988 Here, the point that will be made is much more subtle. The abovementioned Decree was enacted in 1999 by the reformist, post-Abacha, Abubakar-led military government in Nigeria. It was designed to dissolve existing political parties and allow for the formation of new ones. Like most other Decrees enacted by a Nigerian military government, this Decree contained an ‘‘ouster clause’’ – section 13(1) of the Decree. What is remarkable, though, about this Decree is that its ouster clause specifically refers to Chapter 10, the domestic legislation that incorporated the African Charter into Nigerian law. It specifically mentions Chapter 10 as one of the laws the provisions of which cannot affect the validity of the ouster clause itself. This was a novel drafting measure and technique that was obviously adopted in the wake of the African Commission’s insistence on the African Charter’s superiority to domestic laws within Nigeria,89 and in response to the long line of Nigerian cases that had affirmed similar principles.90 This drafting measure is a clear indication also of the extent to which the African Charter was viewed by the legislative wing of the ruling military junta as an obstacle, as an impediment to its legislative objectives. The Charter’s domestic influence was viewed by the military legislature as something which was better avoided lest the military’s legislative objectives be thwarted in the courts. This explicit attempt to circumvent the Charter, and subvert the Commission’s affirmation of its superiority to domestic laws in Nigeria, was in itself an affirmation of the Charter’s vigor and influence within Nigeria. It was also a clear affirmation of the extent to which the African system had to that point been a ‘‘force’’ to be reckoned with within Nigeria, so much so that even a largely dictatorial military regime had felt the strong need to attempt very specifically to render it impotent in this way. Such a strategy would not have been deemed necessary by the military had they not themselves realized that the Charter and the Commission exerted a significant level of influence within the Nigerian legal order.

88 89 90

See Murray, supra note 58, at 424. Communications 105/93 and 130/94, supra note 22. Comptroller Nigerian Prisons v. Dr. Femi Adekanye, supra note 30, Fawehinmi v. Abacha, supra note 39.

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Given the subtlety of the argument that has been made in the last three or so paragraphs, it is important to anticipate and respond to a possible criticism of that argument. A critical observer could argue that it is a bit of a stretch to find evidence of influence in a Decree designed to emasculate the African Charter. At first blush, this might appear to be a plausible criticism of the point that is being made here. However, upon closer examination of the argument, the reader should realize that the point that is being made is that, for the very first time in its three-decade reign in Nigeria, the Nigerian military was so concerned by the African Charter’s potency in the Nigerian courts that it went to great lengths via this Decree to remove it from the repertoire of resources available to activist forces within Nigeria, which confirms other indications that the African Charter was an important factor that the Nigerian military took into account before acting. At the very least, this is clearly an important indicator of constructivist influence. Constructivism, it will be remembered, focuses as much on the influence exerted by IHIs on ‘‘thinking processes’’ as it does on their more material influence.

4.4.4 Newspapers Registration Decree 43 of 1993 I have already discussed the circumstances surrounding this Decree at some length in section 4.2. Suffice it to point out that in this case as well, the efforts of the African system and its virtual network of local activist forces helped to foster a level of correspondence between the actions of the Nigerian military legislature of the time and the decisions of the Commission. Partly as a result of a decision of the Commission, an offensive anti-press Decree was eventually repealed, and was, in any case, never enforced – a significant fact given the widely acknowledged penchant of the relevant military regime to repress press freedoms.91 Similarly, partly as a result of the efforts of the Commission and the relevant network, the Decree that was enacted in place of the repealed one was also never enforced. As has been suggested elsewhere, the mechanics of the processes via which the African system has been able to exert modest influence here does lend credence to the broadly constructivist approach to IHIs. In the foregoing section, I have attempted to demonstrate the significant but modest level of influence so far exerted by the African system on the thinking and action of the judiciary, the executive, and 91

See Ebeku, infra note 99.

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the legislature within Nigeria. What I will attempt to do in the following section is to discuss analytically the various ways in which the African system has also exerted a significant amount of influence on the strategies and activities of certain activist forces which have operated within Nigeria in ways that have facilitated the African system’s modest impact within some of that country’s key institutions.

4.5 Impact on civil society actors and struggles Under this head, I want to tease out and state explicitly the influence that the African system has had on the operations of some ‘‘activist forces’’ that have worked within Nigeria (influence in respect of which much of the supporting evidence has already been supplied in sections 4.2–4.4). Here, the particular kinds of CSAs that I have in mind are human rights NGO activists, activist lawyers, minority rights advocates, activist politicians, and activist journalists. I want to show how the work of these activists (these participants in the virtual human rights network that linked the African system to some of Nigeria’s key domestic institutions) have been invigorated and facilitated by their ‘‘virtual partnership’’ with the African system. To sum it all up, the African system has served as an invaluable and key resource in the hands of these activist forces. I also want to show how some of the norms and decisions that characterize the African system have percolated into public discourse and ideology, and have thus helped to transform at least one set of understandings previously held by most Nigerians. In the end, what is provided is further evidence in support of the persuasiveness of the broadly constructivist take on IHIs.

4.5.1 Impact on the work of CSAs Elsewhere in this chapter, I have argued that the African system has been of significant influence on judicial, legislative, and executive action within Nigeria. However, an examination of the operations or mechanics by which such influence was exerted reveals that the system was only able to work in the way it did largely because it allowed itself to be mobilized and deployed in creative ways by various activist groups that operated within Nigeria. Yet, in most cases, had the system not allowed itself to be so mobilized, the said activists would likely not have achieved the results that they did. This much is evident from our consideration of the Zamani Lekwot and Newspaper Registration Decree cases. The system’s influence enabled them to persuade the courts to take cases

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that would not have been taken under national legislation; to proffer creative legal arguments; to launch legal maneuvers that would not have been possible otherwise92 and thereby persuade many courts to rule in their favor93; to persuade many in the discerning public to put pressure on the military regime to act in the ways in which these activists desired; to justify preferred interpretations of existing constitutional provisions94; and to embarrass (and delegitimize) the military on many occasions, thereby helping to transform public ideologies regarding the appropriateness of military rule and many of its characteristic practices. As is shown elsewhere in this book, the African Commission was itself a strong ally of these local CSAs and often made a special effort to encourage and support their work. In these ways the system markedly facilitated, invigorated, and thus influenced, the work of these activist groups. It provided them with an invaluable resource with which to circumvent some of the absolutist machinations and actions of the ruling military dictatorships. It helped them very much to save a number of lives, secure the freedom of many, and remain relevant to Nigerian political life. As such, the African system was as useful to these activist forces as these activist forces were to the African system. In addition, the Charter has featured very prominently in the ‘‘education’’ campaigns of many CSAs. For instance, Shelter Rights Initiative has produced a Manual on Gender Rights Litigation and Protection Strategies that relies heavily on the African Charter.95 So do almost all of its other manuals.96 The Textbook for Human Rights Teaching in Schools produced by the Constitutional Rights Project is also as heavily indebted to the text of the African Charter. And given the nonjusticiability of the economic and social rights provisions of the Nigerian Constitution, the Shelter Rights Initiative, and the Social and Economic Rights Action Centre (SERAC) have had to rely almost entirely on the presence of such rights in the African Charter as the 92

93 94

95

96

For instance, see Ugochukwu Agballah v. National Constitutional Conference Commission and others, Suit FHC/E/8/94 (Federal High Court Enugu, unreported); and Incorporated Trustees of Media Rights Agenda v. Attorney General of the Federation, Suit FHC/L/CS/ 908/99 (Federal High Court, Lagos, unreported). See Fawehinmi v. Aminu [1993] FHCLR 259. See Ejiofor v. Okeke and others, Suit FHC/AN/M9/96 (Court of Appeal, Enugu Division, unreported). See also Wale Adedayo and another v. IGP. See interview with KM, supra note 22. See Manual on Gender Specific Rights Litigation and Protection Strategies (Lagos, Shelter Rights Initiative, 1998), pp. 48–50. See Eze, infra note 97.

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basis for their legal and public advocacy for the implementation of such rights in Nigeria.97 Most Nigerian CSAs send representatives to the sessions of the Commission, and benefit thereby from knowledge of its jurisprudence, resolutions, decisions, and processes.98

4.5.2 Impact on the struggle for press freedom All too often during the relevant period, the respective military regimes launched severe attacks on the freedom of the press (including closures, arrests, and detentions).99 To the eternal credit of activist journalism in Nigeria, the extremely courageous and creative independent press (made up of news magazines such as Tell and The News) fought gallantly against such attempts to rein them in, and continued to publish, albeit in a guerilla mode, throughout the entire period of military rule in Nigeria. Indeed, these news magazines soon gained so much in credibility among the mass population of Nigeria, that they became the de facto authoritative sources of information for most Nigerians, and saw their circulation and profits soar exponentially. They still profit from the fruits of their courage even until this day. Part of the explanation for their success in maintaining their operations was their participation in the virtual network that was formed around the locus of the African system by activist elements in Nigeria. Independent Nigerian journalists took an active role in affording wide publicity to the work of other activists which involved the deployment of the African system. They themselves benefited tremendously (in terms of the ideological orientation and legitimization that was afforded them) from their relatively constant contact or interaction with the African system, or with the activists who deployed that system within Nigeria’s 97

98

99

See O. Eze, Study on the Right to Education in Nigeria (Lagos, Shelter Rights Initiative, 1998), p. 37. See also LASER Contact, January–March 1998; and SERAC@WORK, April–August 1998, 6–7. For instance see 1997–1998 Annual Report of the Human Rights Law Service (HURILAWS), p. 23. See also 1999 Annual Report of the Human Rights Law Service (HURILAWS), p. 16; HURILAWS Newsletter, April–June 1998, 35; (1998) Constitutional Rights Journal (October–December) 36. See K. S. A. Ebeku, ‘‘Press Freedom and Democracy in Nigeria’’ (2000) 9 Review of the African Commission on Human and Peoples’ Rights 44. These assaults on the press were strongly denounced by the African Commission in a number of decisions. See, e.g., Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication 102/93, (2000) 7 International Human Rights Reports 259.

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legal order. The system’s views reinforced their own sense of ‘‘appropriateness.’’ It also helped to reinforce a similar sense of appropriateness within the larger public, one that motivated a significant chunk of that population to support and encourage the activist press. These are broadly constructivist explanations. The Nigerian public voted very clearly with their money, and sustained these activist publications throughout the duration of military rule in Nigeria.100 They did so often at great personal and collective risk. As importantly, the African system proved to be a key resource for the legal and political struggles waged by the activist press within Nigeria. It was a vital line of defence that, while not always effective, often worked in significant ways. The African Commission issued a number of decisions that were well publicized in Nigeria and which offered much needed normative justification and additional legitimization to these activist journalists as they risked their lives, families, livelihoods, and financial investments, in their battle against military dictatorship in Nigeria. For instance, in Communication 102/93,101 the African Commission declared that: The proscription of The News [an activist magazine] thus constitutes a violation of Article 9 [of the African Charter]. Equally, the seizure of 50,000 copies of Tempo and The News Magazine [is not] justified in the face of Article 9 of the Charter.102

Similar decisions were reached by the Commission in Communication 152/96, Communication 128/94 and Communication 224/98 (the Niran Malolu case).103 Even more remarkably, already in the Newspaper Registration Decree case, the African Commission played a key role in providing the normative justification and basis for the concurring decision of a Nigerian court, as well as in the massive public awareness campaigns that ensured that a very draconian anti-press law was never enforced, and was in fact eventually repealed. As importantly, even without the African Commission’s intervention in any way, Nigerian courts were able to reinforce their statutory and constitutional logics in 100

101 103

This is evidenced by the fact that all of these activist media publications continued to publish throughout the fifteen years of military rule, even though some had to go underground for short spells. Moreover, virtually all of these publications survive to this day. Ibid. 102 Ibid. at 264. See Vanguard, 2 May 2001, at www.vanguardngr.com/30042001/n3020501.htm. See also Media Rights Monitor, February 2000.

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aid of press freedom by a reliance on the African Charter. This happened in a number of cases, including Concord Press of Nigeria Ltd v. Attorney General and others.104 In that case, a large number of armed mobile police officers and state security agents had occupied and sealed off the premises of the Concord Press. The occupying party had a search warrant but went on to order the production of newspapers at the premises to stop. In convincing the court as to the illegality of the continued occupation of its premises and closure of its printing activities, the Press sued for the immediate re-opening of its premises and relied on the provisions of both the Nigerian Constitution and the African Charter. The reliance that was placed here on the African Charter was crucial given the then ruling military government’s attempt to rely on a Decree that ousted the jurisdiction of the courts in such matters. As the courts had tended to view the African Charter (unlike the Constitution) as immune from the military’s attempt to emasculate it, the Charter was an invaluable resource.

4.5.3 Impact on public attitudes The influence that the African system may have had on public attitudes in Nigeria is perhaps the most difficult to map and demonstrate of all the different kinds of influence that it has had within Nigeria. This is not just because of the extremely large size of the potential sample (the total population numbers about 150 million), but also because of the wide range of factors and variables that have been at play in the shaping of the dominant ideological orientations of the target population. The author is intensely aware of this problem. As such a very modest point will be made here. However, it is possible to deduce that the system has been of some influence, alongside many other factors, with regard to a particular kind of transformation in public attitudes that has taken place in Nigeria regarding a very specific issue. The specific issue that I want to grapple with here is the change that has since occurred in the attitude of the vocal sections of the Nigerian public regarding the appropriateness of military rule in that country. Now, few serious observers of the Nigerian political scene doubt that the attitude of Nigerians to military rule has been fundamentally transformed during the period under study. In the old days, Nigerians 104

(1996) 1 CHRLD 47.

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trooped out to the streets to celebrate the advent of military rule.105 They, quite understandably, viewed most of the military officers who staged such takeovers of government as heroes who had come to rescue the polity from the largely dysfunctional behaviour of many preceding civilian and democratically elected leaders. It was even fashionable for very committed pro-democracy activists to openly call on the military to seize power from a civilian regime that was egregiously abusing its powers.106 However, in the years after the handover to a civilian regime in 1999, this largely benign view of, and attitude toward, military rule had begun to give way to a much more sceptical one. In today’s Nigeria, at least among the elite, no longer are prospective and successful military coup-makers uncritically viewed as heroes who are out to arrest the rot in the polity. The massive and highly negative public condemnation and uproar (including by the top military brass) which greeted the recent statement by a former Army Chief of Staff who was removed from office by the Obasanjo regime that he ought to have executed a military coup against that regime while he still held his high military office is most indicative of this position.107 What is more, virtually every public commentator in the seven newspapers examined condemned the statement. It is hardly controversial to state that one of the important reasons for this transformation in the public’s orientation was the tremendous and worthy effort of activist forces to expose the abuses committed all too often by these military governments. As has already been discussed, the anti-military efforts of these activist forces were significantly influenced, invigorated, facilitated, and boosted by the African system. Clearly, therefore, to the extent that the efforts of these activist forces affected 105

106

107

That military interventions ‘‘to save the polity’’ were once trendy in many African states is implicitly acknowledged by the African Commission in its Resolution on the Military, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/8th, Annex VII. For instance, Bolaji Akinyemi, one time Minister of Foreign Affairs of Nigeria, notably called on the military to overthrow the so-called ‘‘Shonekan interim government’’ that had been installed by the departing Babangida-led ruling military junta, and in which General Sani Abacha served as Defence Minister. For example, see Vanguard, 8 March 2006, at www.vanguardngr.com/articles/2002/ north/nt108032006.html. This conclusion is also supported by the author’s assessment of the entire post-military context in Nigeria since May 1999, and especially by the huge public support, and consequent success, that has so far been enjoyed by the current civilian regime in purging the Nigerian military forces of all officers who had served in any political capacity at all during the period of military rule in the country.

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the direction of the marked change that has occurred in public ideology on the matter of military rule, it is quite reasonable to conclude that the African system’s work has had a level of admittedly indirect, but no less significant and appreciable, influence on public attitudes within Nigeria. By serving as a key resource in the hands and mouths of most of those who struggled daily to effect this change in the ideological orientation of the Nigerian public, the African system deserves some of the credit for the transformation that has clearly occurred. While all of the African Commission’s many decisions and resolutions on Nigeria played an important role in this transformation, it is noteworthy that during the heyday of military rule in Nigeria, the Commission had interpreted the Charter somewhat creatively in order to conclude (in a widely publicized resolution) that military rule was in itself a gross violation of the Charter.108 This is not, of course, to argue that the resolution somehow caused a change in the way Nigerians view military rule. This point would be almost impossible to demonstrate, and would be unconvincing anyway, given the relative invisibility of the African system in itself to most Nigerians (especially in the rural areas where most reside).109 The point is that it was part of the ‘‘kitty’’ of decisions and normative statements that were offered by the African system to the activist forces that worked within Nigeria, and succeeded in helping to shape the transformation that was largely shaped by the work of these activist forces. The foregoing paragraphs have shown that the African system has had both direct and indirect influence on the work of activist forces, as well as on the attitudes of the public within Nigeria. It has done so mostly by consciously producing and affirming resources that were then deployed domestically by activist forces. In the following section, I will assess the overall influence of the system within Nigeria, highlighting in my stride the peculiarly difficult circumstances that the system faced; the critical roles which activist forces played in making the system’s efforts 108

109

See Resolution on the Military, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/8th, Annex VII. See N. J. Udombana, ‘‘Toward the African Court on Human and Peoples’ Rights: Better Late than Never’’ (2000) 3 Yale Human Rights and Development Law Journal 45 at 69–70; I. B. El-Sheik, ‘‘The Role of the African Commission in the Protection of Human Rights in Africa with particular reference to Legal Aid’’ in E. A. Ankumah and E. K. Kwakwah (eds.), The Legal Profession and the Protection of Human Rights in Africa (Accra, Africa Legal Aid, 1999), p. 16; and J. Oloka-Onyango, ‘‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’’ (2000) Buffalo Human Rights Law Review 39 at 75.

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domestically relevant; the significant level of trans-judicial communication that resulted; and the need for conventional understandings of the role that may be played by IHIs to be transformed.

4.6 Assessing the overall impact of the African system within Nigeria The extent of the influence of the African system (and its virtual network of local activist forces) within Nigeria cannot be fully or adequately appreciated without a sufficient recognition of the extraordinarily difficult circumstances with which it was faced. It is all too easy for an international human rights institution (IHI) to exert influence within a state when the relevant domestic regime does not offer much resistance, or is for the most part already ideologically in line with the goals and views of the IHI.110 For the most part, this has not been the lot of the African system. In the Nigerian context, the system and its virtual network were for almost all of the relevant period faced with a state that had been governed by largely dictatorial regimes that coveted absolute power, harboured a deep distaste for judicial review, and had on many occasions committed gross or egregious violations of human rights. The contents of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 12 of 1994 aptly illustrate the overdeveloped appetite of Nigerian military regimes for absolute power. Inter alia, the third paragraph of the Preamble to that Decree describes the Abacha military regime as having ‘‘absolute military powers to make laws.’’111 The provisions of this Decree 12 echo the contents of the much older but similarly styled Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970. This infamous Decree had nullified the decision of the Supreme Court in Lakanmi v. Attorney General of Western Nigeria112 (striking down another decree of the federal government that had contravened the Bill of Rights in the then Nigerian 110

111

112

Quite instructively, Menno Kamminga has made the important point that the European system has performed quite poorly when faced with situations of egregious violations of human rights. See M. Kamminga, ‘‘Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?’’ (1994) 2 Netherlands Quarterly on Human Rights 153. Federal Military Government (Supremacy and Enforcement of Powers) Decree 12 of 1994. (1971) University of Ife Law Reports 201.

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Constitution). In nullifying that decision, the then military government effectively consolidated its balance of power over the Supreme Court and the Constitution, as well as declared its dictatorial supremacy.113 This supremacy of military decrees over the Constitution was affirmed subsequently in a long line of cases.114 This largely dictatorial legal scenario, as much as the militaristic state of the polity, posed extremely serious difficulties for the work of activist judges, lawyers, and other progressive activist forces.115 Nevertheless, as has been demonstrated in earlier sections, relying on components of the African system as a crucial resource, activist forces in Nigeria fought a relentless, if sometimes subtle, battle with successive military regimes for the hearts and minds of Nigerians, and regarding the legitimacy of military rule in Nigeria. They won eventually in many such cases, however modest the gains or marginal the eventual victory. As the evidence already discussed shows quite clearly, the African system was an invaluable normative and operational ‘‘ally’’ of these activist forces during this struggle. It provided key resources for the success of that struggle. These activist forces (that is the relevant CSAs and activist judges) have also tended very frequently to deploy the African system (especially the Charter) in fighting a modestly successful human rights battle against the post-1999 formally democratic regime in Nigeria. As illustrated by the recent (November 2005) decision of the Federal High Court of Nigeria (Benin Judicial Division) in Gbemre v. Shell Petroleum Development Company Nigeria Ltd. and others,116 far more often than not, the African Charter is deployed as a resource by both CSAs and activist judges in human rights cases. In that case, the court reached a decision that the action of some of the parties in continuing to flare gas in the course of their oil exploration and production activities in the applicants’ community and their failure to carry out an environmental impact assessment is or contributes to a gross violation of their fundamental rights to life and the dignity of the human person. In articulating its decision, the court relied heavily on articles 4, 16, and 24 of the African Charter, holding that the relevant provisions of the Nigerian 113 114 115

116

See Smith, supra note 17, at 192 and 194. For instance, see Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139. See O. N. Ogbu, ‘‘The Judiciary in a Polity: A Force for Stability or Instability? The Nigerian Experience’’ (1999) 11 African Journal of International and Comparative Law 724. See Suit FHC/B/CS/53/05, 14 November 2005, per Nwokorie J (unreported).

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Constitution were ‘‘reinforced by’’ the Charter. Happily, this tendency among Nigerian CSAs and judges to cite and rely on the African Charter is also growing in strength by the day. This feat could not have been achieved at all, however, but for the kind of trans-judicial communication between the African Commission and the institutions of the Nigerian state (especially the judiciary) that was facilitated, and indeed made possible, by the efforts of the activist forces which operated at the local level within Nigeria. Frans Viljoen has projected that in the near future many a domestic court in Africa may be able to: justify decisions that could embarrass states with reference to cases already decided by the [proposed] African Court [on Human and Peoples’ Rights].117

Viljoen is quite right, of course. However, this form of African systemto-domestic court communication,118 lying as it is out of the more traditional ‘‘compliance’’ or ‘‘hierarchy of precedent’’ frameworks, has already begun to occur in the Nigerian context. Indeed, it has been going on for years. The critical linkage that had to be present for this particular form of trans-judicial communication to occur has been the facilitative role of activist forces, such as CSAs. The role of such activist forces was just as important as the role played by the African system. In my own view, nothing less than a virtual partnership among a range of activist forces and the African system was involved. In the Zamani Lekwot case and the Newspaper Registration Decree case, the important transmission functions performed by these activist forces in deploying otherwise non-binding decisions of the African Commission within and without domestic courts in Nigeria was exceedingly palpable and most remarkable. I have already dealt with these two cases more fully in section 4.2. Just as remarkable is the fact that the activist forces that ably performed the transmission functions just described were in fact much 117

118

See F. Viljoen, ‘‘Some Arguments in Favour of and Against an African Court on Human and Peoples’ Rights’’ (1998) 10 ASICL Proceedings 21 at 29. Even though the African Commission is viewed as a ‘‘quasi-judicial’’ as opposed to a ‘‘judicial’’ institution, the form of mediated communication that has occurred between it and some domestic courts in Nigeria is similar to a kind of ‘‘court-to-court’’ communication that Anne-Marie Slaughter has aptly described as ‘‘trans-judicial relations’’ that are ‘‘lubricated’’ by judicial comity. See A. Slaughter, ‘‘Court to Court’’ (1998) 92 American Journal of International Law 708. In the Nigerian cases, much more than comity was at play. In my view, nothing less than a virtual anti-military partnership was involved.

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more than detached ‘‘litigants’’ who simply went to the Commission to obtain redress on behalf of some aggrieved Nigerians. These activist forces were, in effect, partners who were engaged in a common enterprise with the African system. As has been hinted throughout this chapter, these actors were, in effect, members of a virtual human rights network that included a range of local and international actors, such as activist judges, the local press, and foreign funding agencies. But in this Nigerian case, the local CSAs and the African Commission formed the operational core of the network. The existence of this network, to the extent that it has not already been rendered palpable by the discussions in the previous sections, is not difficult to demonstrate. As Jack Donnelly has correctly noticed, the African Commission has not merely permitted the participation of CSAs in its work. It has in fact encouraged it very strongly.119 Wolfgang Benedek has also made a similar point.120 The words of a former Vice Chair of the Commission are more revealing. According to Ibrahim Badawi El-Sheikh, the African system is ‘‘definitely’’ a part of the African human rights movement, and has formed a ‘‘partnership’’ with CSAs.121 The fact that, to date, most of the stories that have been told in this chapter have rarely been told before is testimony to the extent to which the described phenomenon has been largely outside the radar of the conventional paradigm for assessing both the African system and other IHIs. I am, of course, aware of references to the Zamani Lekwot case 119 120

121

See J. Donnelly, International Human Rights (Boulder, Westview Press, 1993), p. 92. See W. Benedek, ‘‘The African Charter and Commission on Human and Peoples’ Rights: How to Make it More Effective’’ (1993) 11 Netherlands Quarterly of Human Rights 25 at 34–35. See El-Sheikh, supra note 109, at 15. El-Sheikh’s observation is buttressed by a similar observation in the Commission’s report on its Thirteenth Session held in 1993. See (1993) 13 African Commission Report 1. See also Resolution on the Promotion and Respect of International Humanitarian Law and Human and Peoples’ Rights (which, in part, stresses the importance of cooperation in human rights education between the Commission and CSAs). See Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1993–1994, ACHPR/RPT/7th, Annex XI. However, it must be noted that relations between the Commission and its CSA partners are not always harmonious. For instance, some Nigerian CSAs protested quite vociferously at the manner in which the Commission conducted its mission to Nigeria. See R. Murray, The African Commission on Human and Peoples’ Rights and International Law (Oxford, Hart Publishing, 2000), p. 21. At least one Nigerian activist has also complained at the invisibility of some of the Commission’s work even to CSAs. See interview with AS (not real name) at Lagos, Nigeria, 25 May 2000. However, on the whole, the partnership has been largely workable and productive. See Mugwanya, supra note 9.

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in the more recent writings of Chidi Odinkalu, Evelyn Ankumah, Joe Oloka-Onyango, and Rachel Murray.122 As the quotation at the beginning of this chapter indicates, Odinkalu is quite appreciative of the fact that the conventional paradigm for evaluating the performance of the African system is inadequate. So are scholars like Mutua, OlokaOnyango, Ankumah, and Murray.123 However, the full extent of the domestic impact of the African system and the implications of that correspondence for the evaluation of IHIs still needs to be explored, captured, and analyzed. A major reason for the recognized inadequacy of the conventional paradigm is the fact that it does not really take into account the various creative ways (already recounted in this chapter) in which CSAs and other activist forces deploy and employ IHIs such as the African system within states. To the results of the measure of what these institutions can do to or for us, the holistic paradigm adds the results of the additional measure of what can be done with these IHIs within state institutions and within public discursive spheres. Both measures, not merely the latter, must be in place if we are to obtain a holistic and thus much more complete picture of the performance of any IHI. Both paradigms are complementary in nature. As importantly, the evidence analyzed in this chapter tends to show that the creative invocation of the African system within the domestic context by activist forces can help produce reformulations in understandings of identity, self-interest and the logics of appropriateness that are subscribed to by key institutions within the relevant state. As such, this evidence does lend much credence to the suitability of a constructivist approach to the understanding of the capacity of IHIs to exert influence within (as opposed to on) states. From the analysis in this chapter, it is pretty clear that, when creatively utilized, even an IHI that is generally assessed as weak can still make a difference to the lives of the people who live within states. At the very least, it is clear from the evidence presented in this chapter that, in part because of the hard work and creativity of its Nigerian network partners, the African system has begun to make a modest but significant 122

123

See Odinkalu, supra note 1, at 402–403; E. A. Ankumah, The African Commission on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1996), pp. 72–73; OlokaOnyango, supra note 2, at 56; and Murray, supra note 58, at n. 30 and accompanying text. For instance, see M. Mutua, ‘‘The African Human Rights Court: A Two-Legged Stool?’’ (1999) 21 Human Rights Quarterly 342 at 343; Oloka-Onyango, supra note 2, at 56.

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difference within Nigeria. And while the dividends that have been yielded have been quite modest so far, they have still been highly significant, at least in terms of their direct and indirect impact on thousands of ordinary Nigerians. As I will attempt to show more fully in chapter 6, the chief merit of the phenomena that the holistic optic allows an observer of the work of the African system to observe is not that it demonstrates somehow that the African system’s decisions or normative goals have been complied with by Nigeria, or by domestic institutions within Nigeria. What is most remarkable about these phenomena is that they show quite clearly in my view that the African system can, and in fact has, helped to produce significant, valuable, and remarkable cases of the direct and indirect correspondence of domestic judicial, executive, and legislative action with its decisions or normative goals that would not otherwise be revealed. It is as remarkable that such correspondence would most likely not have occurred but for the efforts of the African system and its virtual network partners. Again, as much of the evidence that has been presented in this chapter shows, without the African system’s support, the work of those of its network partners who operated at the domestic level would have been significantly impeded. A passage from a recent decision by the African Commission indicates that even the Commission itself is beginning to appreciate the significance of its capacity to exert some influence within states in ways similar to those already described here, and that it has been emboldened by this fact. In consolidated Communications 137/94, 139/94, 154/96, and 161/97 (the Saro-Wiwa cases), the Commission itself noted that in the past executions had been stayed in Nigeria on the invocation within the domestic sphere of the Commission’s indication of provisional measures.124 The creative ways in which the Commission’s decision in an earlier case was transmitted into the Nigerian legal order has already been discussed in this chapter. On another note, in assessing the overall impact of the African system within Nigeria, we must take note of the fact that when compared to the African Charter’s civil/political rights (CPR) provisions, its socioeconomic rights (ESC rights) provisions have not percolated in nearly as much measure into the decision-making processes of the relevant domestic institutions. Thus, the domestic percolation pattern of the 124

These decisions are reproduced in Institute for Human Rights and Development, Compilation of Decisions on Communications of the African Commission on Human and Peoples’ Rights 1994–2001 (Banjul, The Gambia, 2002), pp. 230–247.

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African system has been rather skewed. Perhaps with the notable exceptions of the Muojekwu and Gbemre cases, nearly all the cases discussed in this chapter in which the African Charter has been invoked in Nigerian court decisions have in the main concerned CPR issues. The large sample of these cases that is discussed in this chapter is representative. The marginalization of ESC rights in the processes via which correspondence has been produced in Nigeria is also evident in the tendency of most Nigerian CSAs (with the exception of the self-described socioeconomic rights NGOs) to refer to the African Charter much more in relation to CPR cases than in ESC rights matters.125 As importantly, it is difficult not to notice the relative elitism involved in the fact that both the African system and the activist forces which have largely driven the African system’s domestic percolation (and who are themselves often far less than mass social movements) tend to concentrate on deploying rights language on a continent in which the vast majority of the population more readily speak and listen to other oppositional languages of human dignity such as ‘‘the language of duties.’’126 Thus, whatever the abstract merits of rights language, for the most part its use in most African contexts does, at the very least, tend to suffer from a practicality problem. At best, it has helped create a popular legitimacy handicap for these NGOs and for the work that they have helped do. Lastly, it must be warned that although the trans-judicial communication and subsequent correspondence that occurred in this Nigerian case helped produce progressive results in virtually all the cases discussed here, the creative strategies for the invocation of the African system that were deployed by activist forces are still merely resources and technologies which, like the very human rights norms that they purvey, are as capable of being invoked in favour of regressive outcomes. After all, as Baxi has long warned us, human rights expressions and strategies can shelter an incredible diversity of politics and ideologies!127 125 126

127

See Okafor, infra note 126. See C. A. Odinkalu, ‘‘Why More Africans Don’t Use the Human Rights Language’’ (2000) Human Rights Dialogue 3; O. C. Okafor, Legitimizing Human Rights NGOs: Lessons from Nigeria (Trenton, NJ, Africa World Press, 2006), pp. 209–237. See also M. Mutua, ‘‘A Discussion on the Legitimacy of the Human Rights NGOs in Africa’’ (1997) Africa Legal Aid Quarterly (October–December) 28; and J. Ihonbvere, ‘‘Where is the Third Wave? A Critical Evaluation of Africa’s Non-Transition to Democracy’’ (1996) 43 Africa Today 343 at 358. See U. Baxi, ‘‘Voices of Suffering and the Future of Human Rights’’ (1998) 8 Transnational Law and Contemporary Problems 125 at 129; and U. Baxi, The Future of Human Rights (Delhi, Oxford University Press, 2002), p. 6.

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4.7 Factors that have facilitated or militated against the African system’s impact within Nigeria Under what exact conditions did the African system help shape or reshape the self-understandings, conceptions of interest, or logics of appropriateness held within key domestic institutions in Nigeria? Can those conditions be broadly specified? The answers to these questions can be gleaned from a discussion of the factors that have helped shape such influence in the first place. A number of key factors have combined to facilitate the modest influence that the African system has exerted within Nigeria (some to a greater degree than others). These factors will be treated here, one after the other, before a discussion of the factors that have combined to impede its influence within Nigeria. The discussion will therefore proceed in two movements.

4.7.1 Positive factors As must be crystal clear from the rest of the discussion in this chapter, one of the two most important factors that have facilitated the domestic promise of the African system within the particular Nigerian context is the incredible creativity and dynamism of the local CSAs which operate there.128 As this factor has been highlighted throughout this chapter and emphasized in the last section, our discussion of its importance here will of necessity be relatively brief. Suffice it to say that without the creative and courageous role of these CSAs, as intelligent transmissionlines between the African system and the key domestic institutions in Nigeria, the African system would not have much impact within Nigeria. These CSAs worked with the judiciary, legislature, and executive in Nigeria to help produce alterations in the hitherto prevalent selfunderstandings, conceptions of identity, and logics of appropriateness held within these institutions. As quasi-constructivists would expect, they made detailed ends-means calculations; worked to persuade judges, legislators, and government officials to adopt certain textual interpretations and attitudes; and tended to succeed in persuading key sections of the elite to support them or become their allies. This was the key way in 128

For an extensive book-length consideration of this question, see Okafor, supra note 126. See also O. C. Okafor, ‘‘Modest Harvests: On the Significant (but Limited) Impact of Human Rights NGOs on Legislative and Executive Behaviour in Nigeria’’ (2004) 48 Journal of African Law 23.

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which the African system’s norms/processes came to achieve a modest measure of influence within a Nigerian domestic socio-political context that was mildly receptive (though mostly harsh). This is a process that lends credence to the broadly constructivist theoretical approach to IHIs. As such, it seems reasonable to expect that where CSAs have been as creative and dynamic, the African system will tend to be as modestly influential. This proposition will be examined more closely at the end of chapters 5 and 6 in relation to the evidence adduced in those chapters. In the circumstances, it also seems reasonable to suggest the factors that have facilitated or impeded the work of CSAs in Nigeria will be consequential in connection with their ability to facilitate the African system’s influence within Nigeria. As I have outlined them in a recent article,129 these factors include their facility at detailed ends-means calculations; ability to work in coalitions; ability to actively cultivate and enter into a kind of ‘‘virtual alliance’’ with the progressive wing of the Nigerian judiciary, and with the very dynamic independent press in Nigeria; their ability to creatively, nimbly, and strategically deploy international texts and institutions within the domestic courts and other such local contexts; and their ability to focus some amount of international (read mostly Western) pressure on the Nigerian government. In the end, as has been shown above, the activities of these activist forces were key to the modest success that was enjoyed in generating African system influence within Nigeria. A somewhat related and critical factor was the courage, independence, and dynamism displayed by the progressive wing of the Nigerian judiciary. This fact has already been elaborated at length in this chapter, but suffice it to say that these judges constituted themselves into virtual network partners of the local CSAs and the African system, and thus helped create many of the instances of correspondence which occurred in Nigeria. Without the work of these judges and their participation in this virtual human rights network, far less correspondence will have occurred within Nigeria than was reported in this chapter. As I have argued elsewhere and in another context,130 another pivotal factor that facilitated the African system’s ability to achieve influence within Nigeria is the fact that the deep cleavages within the Nigerian state (a state that is a hasty, inorganic agglomeration of hundreds of

129

See Okafor, ‘‘Modest Harvests,’’ supra note 128, at 43–45.

130

Ibid. at 45.

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formerly separate polities)131 have made Nigerian political culture much more amenable to negotiation and popular pressure than is commonly acknowledged in the literature. Because of these deep cleavages, the ruling elite has found it conducive to their continued mutual access to power and to the very survival of the Nigerian state to attempt to accommodate – to the minimal extent necessary to ensure stability – the more stridently expressed yearnings of each segment of the population. They have recognized the value of enjoying a modicum of popular legitimacy (or at least tolerance), however minimal in extent. In any case, no Nigerian regime, however dictatorial, has ever survived for all that long based purely on its repression of popular resistance. Thus, within the kind of political culture that prevailed in Nigeria, repression was often moderated (and made to seem tough but reasonable all the same) by sometimes remarkable concessions to the more vociferous or stinging criticisms, especially those that bear the imprimatur of sociolegal authority, like decisions of the courts, the African Commission, or the United Nations. It is this kind of complex political culture that allows some limited room, even within dictatorial regimes, for the kind of success that these CSAs have so far enjoyed in facilitating the African system’s influence in Nigeria. It is this kind of political context that provided a moderately receptive environment for the Commission’s norms. A third factor is the fact that the Commission itself has actively supported the work of the activist forces that operate in Nigeria, and that its processes (imperfect as they are) have been shaped by the Commission in a way that has greatly facilitated their use by the relevant activist forces. This much has already been shown elsewhere in this chapter. Another important factor was the fact that, as has been shown already, the African Charter has been an integral part of Nigerian law since the 1980s. This has served the function of helping to ease the effort made by Nigerian CSAs to convince local judges to apply the Charter in invalidating contrary domestic law. This is important given the fact that Nigeria operates under a predominantly dualist conception of the relationship between domestic and international law, under which no such treaty can be applied in the courts as law unless it has been incorporated into the Nigerian legal system by the enactment of implementing 131

See O. C. Okafor, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa (The Hague, Martinus Nijhoff, 2000).

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domestic legislation. While the Nigerian courts could have applied the African Charter as an interpretive tool, this method does not impose on them the sort of imperative obligation to apply the Charter as the domestic incorporation of that treaty did. In a formalist legal culture like Nigeria’s, this is a key advantage. Nigerian CSAs were thus enabled by the enactment of the Charter as Nigerian law to make stronger arguments that resonated in a much better way in the courts than would have been possible otherwise. The fifth and last positive factor that I will deal with is the overall international context. The relegation of Nigeria into a kind of mild pariah state by many of the foreign regimes and international institutions that its ruling regime wanted to court also helped to soften the ground for the grassroots work that activist forces did in facilitating the African system’s influence within Nigeria. As such, overall, the mildly receptive Nigerian environment was a significantly fertile soil within which the seed of the African system’s norms could sometimes germinate and yield a modest harvest. At the very least, the seed of the African system was essential to the success of the eventual harvest in the same way as, however fertile the soil is, a corn harvest can never occur without corn seeds being planted in it by the farmer. In the case of the African system’s influence within Nigeria, the principal corn farmers were the local activist forces that served as intelligent relays between the African system and key Nigerian institutions.

4.7.2 Negative factors A number of factors combined to impede the capacity of the African system to exert influence within Nigeria. An important such factor is the limitations of the CSAs that were key to the system’s success. Whatever factors limited their ability to play that role in turn limited their capacity to serve the African system in the domestic context. As I have shown elsewhere, these limitations included both deficiencies in the conceptual apparatuses that guided their work and problems with their institutional forms and methods.132 Importantly, as I have shown elsewhere, these CSAs tended to deprioritize socio-economic rights work, minority/ environmental rights work and women’s rights activism. They also tended to compete too much with each other, overproliferate, overfocus on rights language to the detriment of other already popular oppositional 132

See Okafor, ‘‘Modest Harvests,’’ supra note 128, at 43–45.

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languages, and overly concentrate on foreign sources for funding. All these factors combined to weaken them as a community, and to distance them to a significant extent from most of the very majority underclass that they want to help (a form of relative elitism). As a result, they were not as able as they could have been to mass-mobilize Nigerians to the extent needed to achieve much more influence within the Nigerian state. For the more they could demonstrate to the ruling juntas their popularity and dedicated following among Nigerians, the more they could expect to be taken seriously by a legitimacy conscious Nigerian military. What is more, Nigeria was a democracy during a small part of the relevant period, and democratic regimes tend to take popular movements much more seriously than less popular ones. Another important negative factor is the relatively low visibility of the African system within Nigerian society, despite the fact that it is perhaps in Nigeria that the system has had the most visible presence. For one, although the African Charter is now well known to most members of the relatively elite group of activist lawyers, CSAs, activist judges, and other activist forces who have largely driven the generation of the correspondence that has been produced within Nigeria, the Charter is not nearly as well known outside this limited bounds. What is more, as a result of the less than optimal literacy levels among the general population of Nigeria, the low utilization of the Charter in the country’s educational curriculum, the social distance of many CSAs from the majority rural and majority poor populations, the physical location of the African Commission in another country, and the relative inadequacy of the promotional activities undertaken by the African system and by many CSAs (as compared to the extent of the need for the further popularization of the African system in the country), the system is still not as visible as it could and should be among the ranks of the non-elite and nonurbanized Nigerians who form the vast majority of Nigeria’s population. Another factor that was already alluded to in the last section in a somewhat different context is that, while the African system has made some efforts in the right direction, its jurisprudence has dealt far less with socio-economic (ESC) rights than with civil and political (CPR) rights.133 Accordingly, the ESC rights provisions of the African Charter 133

See C. Mbazira, ‘‘The Right to Health and the Nature of Socio-Economic Rights Obligations under the African Charter: The Purohit Case,’’ available at www.community lawcentre.org.za/ser/esr2005/2005nov_charter.php; S. Khoza, ‘‘Promoting the Realisation of Economic, Social and Cultural Rights: The African Commission Holds

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have received far less attention than its CPR provisions. As such, far less correspondence has been generated in the ESC rights area than with respect to the CPR provisions. While the cases dealt with by the African system depend on the cases sent to it by individuals, CSAs, and other entities with procedural access at the African Commission, the system’s relative neglect of ESC rights has certainly limited the richness and character of the correspondence that was generated in Nigeria, and may have limited its overall quantity as well. Other factors include the harsh dictatorial environment that was fostered by decades of more or less authoritarian military rule; the serious resource problems experienced by the African system that affected much more than its promotional work; and the system’s relative youth as an institution. Almost all of these factors have already been noted or examined elsewhere in this chapter or book. At the end of chapter 6, the factors which have facilitated and militated against the African system’s domestic promise in Nigeria will be combined with the evidence adduced in chapter 5 and in chapter 6 itself so as to be in a position to specify more accurately and more generally the conditions under which the African system can help shape or reshape the self-understandings, conceptions of interest, and logics of appropriateness held within key domestic governmental institutions in African states. In this way will the factors that have enhanced or impeded the domestic impact of the African system be specified.

4.8 Summary of the arguments The main concern in this chapter has been to supply and analyze the available evidence which supports the contention that the African system has, with the facilitative contribution of local activist forces, exerted modest yet significant influence within key domestic governance institutions in Nigeria. This has been done. It has also been shown that this modest feat is quite remarkable nevertheless, given the widespread perception of the African system as a particularly weak IHI and given the dictatorial character of the military regimes that ruled Nigeria for almost all of the relevant period. Such evidence suggests that even IHIs that are viewed as weak (when assessed in conventional ways) may in a Seminar in Pretoria’’ (2004) 4 African Human Rights Law Journal 334; and Social and Economic Rights Action Centre and another v. Nigeria, Communication 155/96, reproduced in Fifteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2001–2002 (on file with the author) 31.

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fact still possess some significant value. It also indicates that, focused as they are on ‘‘measuring’’ state compliance with IHI decisions, the conventional optics and analytical frameworks are inadequate for fully understanding the extent of possible African system and IHI effects within states. This evidence also provides important insights into the ways in which an IHI such as the African system can help shape or reshape the self-understandings, conceptions of interest, and logics of appropriateness held within key domestic institutions. It is chiefly in these ways that this evidence lends added credence to the broadly constructivist approach to IHIs. In the next chapter, a detailed examination is made of the evidence of the significant if limited impact that the African system has had within South Africa, the only other towering country on the African continent in the relevant respects. As analysis of this evidence will disclose, the African system has indeed exerted a limited but still appreciable degree of influence within South Africa in a way that is hardly cognizable by the compliance-centered radar.

5 The utilization of the African system within South Africa

5.1 Introduction In line with the conceptual and methodological approach that was adopted in the last chapter, the same kinds of issues that were raised in that context with regard to the impact of the African system within Nigeria also animate the discussion here. As the nature of those approaches and related issues have been discussed extensively in chapter 4 it will not be repeated here in any detail. What this chapter focuses on is the systematic examination and discussion of the available evidence relating to the impact of the African system within South Africa. Has this system impacted judicial reasoning and action, executive deliberations and action, legislative debate and action, and the work of civil society actors (CSAs) in South Africa? If so, to what extent has its impact been felt within these institutions and groups? What factors have facilitated or impeded this impact? Do the various processes via which this impact has been produced (what I have referred to elsewhere in this book as ‘‘correspondence’’) differ from the ‘‘state compliance’’ which is traditionally focused upon in most of the literature? If so, how do they differ? What was the role of activist forces (such as some CSAs, judges, and MPs) in these processes in South Africa? What does the character of these other processes tell us about the adequacy or otherwise of the dominant state compliance measure and the way in which we evaluate and imagine international human rights institutions (IHIs)? To be clear, the argument that is made in this chapter is that the African system has had an appreciable degree of impact within South Africa’s judiciary, executive branch of government, and legislature. It is also argued that to varying degrees the activities of some South African CSAs have also been impacted by the African system. Nevertheless, one important contention in this chapter is that as significant and valuable as it has been, the system’s domestic impact in South Africa has not, as yet, been all that extensive or deep, at least not in comparison to the Nigerian 155

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context. Reasons are offered at the end of the present chapter for the limited nature of the system’s impact within South Africa. To the end of demonstrating its arguments in a systematic way, the chapter is organized into eight sections (this introduction included). In section 5.2, the impact of the African system on judicial decisionmaking is considered. In section 5.3, the system’s impact on executive deliberation and action is examined. In section 5.4, the available evidence relating to the impact it has had on legislative debate and action is analyzed. In section 5.5, the impact of the system on CSAs is discussed. Section 5.6 focuses on assessing the overall impact of the system within South Africa. Section 5.7 is devoted to the consideration of the various positive and negative factors that have either facilitated or militated against the African system’s impact within this key African country. The chapter is concluded in section 5.8 wherein a summary of the arguments that are made in this chapter are offered and linked to the chapter that follows.

5.2 Impact on judicial decision-making and action In the case of South Africa, which only formally joined the African system in 1996 and which did not really begin to participate fully in its work until some time thereafter, section 231 of the South African Constitution provides that international agreements, such as the African Charter, bind that country only after they have been approved by resolution in both Houses of Parliament.1 That section also provides that these international agreements can only become a part of the corpus of South African law when they have been enacted as domestic law by the South African Parliament. As such, the mere ratification of a treaty does not in and of itself make it domestically applicable in South Africa and only those international instruments that have become a part of that country’s body of domestic legislation are formally binding on its courts.2 Although, the African Charter has not yet been enacted into South African domestic law by national legislation and is as such not formally binding on the South African courts, section 39(1)(a) of the 1 2

See the Constitution of the Republic of South Africa Act, 1996 (Act 108 of 1996). See N. B. Pityana, ‘‘Hurdles and Pitfalls in International Human Rights Law: The Ratification Process of the Protocol on the African Charter on the Establishment of the African Court on Human and Peoples’ Rights’’ (2003) 28 South African Yearbook of International Law 110 at 113–121.

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South African Constitution enjoins that country’s courts to consider treaties such as the African Charter when interpreting the Constitution itself. As importantly, section 233 of the same Constitution provides that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law instead of any alternative interpretation that is inconsistent with international law.3 Given this constitutional injunction on the South African courts to apply international law and their noted propensity to indeed invoke international human rights instruments, it is somewhat surprising that there has not as yet been a surfeit of references to the African Charter in South African judicial decisions. However, the historical paucity of explicit references to and reliance upon provisions of that regional human rights treaty in the decisions of South African courts is being remedied to an extent by their increasing reliance, especially over the last few years, on that instrument. These judges have increasingly invoked the Charter as one way of strengthening and/or legitimizing their judicial arguments and preferred interpretations of the South African Constitution. Their constitutional human rights arguments have as such often been buttressed by references to the Charter. This point is illustrated by the discussion that follows. In the Samuel Kaunda case,4 which is most remarkable for the marked influence that the Charter exerted on the reasoning process of virtually all of the judges of the Constitutional Court who wrote either the majority decision or one of the separate opinions, all the judges in the case either deployed the Charter or concurred in judgments or separate opinions that invoked that treaty. As such, this case will be discussed in far more detail than most of the other cases referred to in this chapter. The case was brought by a group of South African citizens who were at the time being held in Zimbabwe having been arrested on a plane that set down at the Harare International Airport and charged with a variety of offences, including possession of dangerous weapons and concealing such weapons. These applicants were suspected of being mercenaries who were on their way to Equatorial Guinea to participate in a planned 3

4

See A. Sachs, ‘‘War, Violence, Human Rights, and the Overlap between National and International Law: Four Cases Before the South African Constitutional Court’’ (2005) 28 Fordham International Law Journal 432 at 465. See Samuel Kaunda and others v. President of the Republic of South Africa and others (2004) 10 BCLR 1009 (Constitutional Court). This case is also reproduced in (2005) 44 International Legal Materials 173.

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coup against the president of that country. The applicants sought, inter alia, a declaration from the court that under the South African Constitution the government of South Africa was obliged to seek diplomatic assurances from the government of Zimbabwe that the latter country would not subject them to the death penalty or other serious human rights abuses, would not extradite them to Equatorial Guinea, but would release them instead to South Africa. They also sought a consequential order directing the government of South Africa to seek such diplomatic assurances. A key issue for determination in this case was whether the South African Constitution entitled the applicants to such declarations and consequential orders. In deciding against these applicants, the majority of the Constitutional Court held that while the Constitution entitled the applicants to request the government to seek diplomatic assurances from Zimbabwe or other countries that they would not be subjected to the said human rights violations, and while the government was obliged to consider such requests and deal with them appropriately, and although their decisions in respect of such requests were subject to constitutional control, the government must be allowed ‘‘wide discretion in determining how best to deal with such matters.’’5 Chaskalson CJ, who wrote the majority opinion (which was concurred in by Langa DCJ, Moseneke J, Skweyiya J, van der Westhuizen J, and Yacoob J), invoked the Charter in three main instances to strengthen his constitutional arguments. In buttressing his argument that the Constitution could not be read to require the government in every case to seek diplomatic protection for its citizens and that the courts must allow a large measure of discretion to the executive in this connection, he invoked the fact that a human right to diplomatic protection is not contained in either the African Charter or the Universal Declaration of Human Rights (UDH).6 In justifying his broad argument that the government could not be compelled by the courts in every case to seek diplomatic assurances against the imposition of the death penalty on a South African citizen by a foreign country, Chaskalson CJ reasoned that while capital punishment is inconsistent with the provisions of the South African Bill of Rights, it ‘‘is not prohibited by the African Charter . . . and is still not impermissible under international law.’’7 Similarly, in seeking to justify his argument that the Constitution imposes a duty on the government to at least maintain a watching brief over the behaviour of Equatorial 5

Ibid. at para. 144(5) and (6).

6

Ibid. at para. 34.

7

Ibid. at para. 98.

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Guinea (a country against which many accusations of gross violations have been made) in respect of the human rights situation of the applicants if they are extradited to that country by Zimbabwe, the court invoked the prohibition of these violations in the African Charter, a human rights treaty which, as the court noted, had been ratified by Equatorial Guinea.8 For her own part, O’Regan J wrote a separate decision (concurred in by Mokgoro J) which dissented from the majority opinion mainly on the questions of the appropriate relief to be ordered by the court and the existence of a separate duty on the government, independent of a request by a citizen, to take steps to afford diplomatic protection to its citzens in circumstances in which their human rights may be breached by another state. Of significance to our objective in this chapter is the fact that O’Regan J invoked the Charter in several portions of her judgment in order to buttress her overall constitutional argument. For one, she relied on the African Charter in the first paragraph of her opinion to establish the legal basis of the human rights claims that South African citizens may make in such situations.9 She also cited the Charter while agreeing with Chaskalson CJ that the claimed human right to diplomatic protection is of uncertain international status, having been left out of the African Charter and other human rights instruments and treaties. She then proceeded, in part, to rely on the Charter’s ratification by South Africa to underlie that country’s commitment to the protection of human rights in the international arena, a point that fed into her broader argument that the South African government had a clear independent duty to seek diplomatic protection on behalf of its citizens whose human rights might be egregiously violated abroad by another state.10 However, the most significant invocation of the Charter in her decision was when she extensively reproduced articles 5 and 7 of the Charter to reinforce the above argument.11 Here, her argument was that since ‘‘South Africa, Zimbabwe, and Equatorial Guinea have all ratified the African Charter,’’ and are ‘‘bound by its provisions,’’ the Charter must be taken to oblige each of these countries to take steps to protect their citizens when another of these countries may egregiously violate one of its provisions.12 Thus, the creative invocation of the Charter clearly played an important role in the legal logic that underpinned this judge’s decision in this case. 8 11

9 Ibid. at paras. 119 and 127. Ibid. para. 212. Ibid. para. 262. 12 Ibid. paras. 261–272.

10

Ibid. para. 223.

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As consequential as the Charter was in the reasoning process of the judges whose decisions have just been analyzed for their deployment of the Charter to strengthen their arguments, it was in the separate opinion of Ngcobo J (which almost entirely concurred with the majority judgment) that the Charter was put to the most use in both a creative and a quantitative sense. Indeed, as will become clear very shortly, Ngcobo J relied quite heavily on the Charter in order to justify his imposition of a constitutional duty on the government to properly consider a citizen’s request for diplomatic protection from serious abuses of her or his human rights by another state, and in its wide (but reviewable) discretion to use available international mechanisms for advancing the citizen’s case. In five separate instances, Ngcobo J drew on the African Charter to reinforce this overall logic. In the first place, after arguing that the Constitution committed the South African government to take steps to protect the human rights of its citizens, he relied on the Charter for reinforcement when he declared that the South African government’s ‘‘commitment to the advancement and protection of fundamental human rights is also apparent in the ratification of the African Charter’’ by South Africa.13 In a second movement he invoked and extensively reproduced articles 1, 7, 6, and 5 of the Charter (in that order) in order to demonstrate that the executive branch was bound to take reasonable steps to protect South African citizens abroad from serious abuses of their core human rights.14 In his own words: [the African Charter and the ICCPR] should inform the government’s foreign policy. They provide the government with a tool to protect the internationally recognized human rights of South African nationals. What is more, these instruments are binding under our Constitution.15

In the third instance, he invoked the Charter to denote the status of the right to fair trial as a fundamental human right the violation of which must surely impose a constitutional duty on the executive branch to grant diplomatic protection to an affected citizen who is so affected by the behavior of a foreign state.16 In a fourth move, Ngcobo J invoked images of the presumed inadequacy of the more formal remedies that are provided by the individual petition and other mechanisms of the African human rights system17 as 13 17

Ibid. para. 158. 14 Ibid. paras. 160–162. Hereinafter ‘‘the African system.’’

15

Ibid. para. 162.

16

Ibid. para. 197.

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well as the slowness with which these remedies can be provided, in order to strengthen his argument in favour of the need for the government to use diplomatic protection in the more urgent cases, except where there were compelling reasons not to act in that way.18 Of significance here as well is the fact that he described the African Charter as an important document and went out of the way to call for the strengthening of the African system by the physical establishment of the African Court of Human Rights in order to ‘‘enforce’’ the rights guaranteed in the Charter.19 In so doing, he explicitly communicated his high level of comfort with the prospect of his own judicial reasoning becoming much more formally circumscribed by the norms of the African system than it already is. This is a clear indication of the importance he attached to the norms of the African system. In his fifth and perhaps most significant move, Ngcobo J invoked the fact that all the three relevant countries had ratified the African Charter and that as such the state-to-state complaints mechanism of the African Commission on Human and Peoples’ Rights (African Commission) was available for use by the South African government, in order to buttress his argument that the South African government had a duty (save when compelling reasons otherwise dictated) to protect its citizens from the abuse of their human rights by another state party to the Charter.20 In his view, since South Africa had an obligation under the Charter to promote and protect human rights, it was ‘‘obliged to take some steps when an egregious violation of the very fundamental human rights enshrined in the document it has ratified, is being committed by a member state.’’21 Thus, the fact that the African Charter did have a profound impact on Ngcobo J’s reasoning process in this case can hardly be overstated. Most remarkably, at least one of the major arguments that he made in this decision could not have been available to him, it seems, without his creative invocation of the Charter. Regarding the role that activist forces played in producing this instance of the domestic impact of the Charter in South Africa, one that occurred beyond the view of the compliance measure, it seems clear that judicial activism from pro-human rights judges was central in the generation of such an appreciable impact on the judicial reasoning process. The intelligent relay or mediatory function played by Ngcobo, Chaskalson, and O’Regan JJ in invoking the Charter as an interpretive and justificatory resource is clear from the above analysis. The other 18

Ibid. para. 166.

19

Ibid.

20

Ibid. para. 163.

21

Ibid. para. 164.

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relevant members of the assemblage of activist forces that helped to play this intelligent relay or mediatory function included the Society for the Abolition of the Death Penalty in South Africa, and the activist lawyers who represented this CSA as amicus curiae in this case. For example, counsel for this CSA cited and relied quite appreciably on the Charter in its heads of arguments (that is, brief or factum) filed in this court for the consideration of the judges.22 The government’s brief also invoked the Charter; a point that will be discussed when the impact of the Charter on the executive branch is examined later on in this chapter. In the Bhe case,23 two separate disputes involving the denial of inheritance rights to daughters or sisters of a deceased black male and a separate public interest challenge related to both cases were consolidated and heard together. In the first case (that is, Bhe itself) two minor female children challenged the appointment of their paternal grandfather as the representative of the estate of their deceased father. In the second case (the Shibi case), the sister of the deceased challenged the appointment of his male cousins as the representatives of the deceased’s estate. In the last case, the South African Human Rights Commission (SAHRC) and the Women’s Legal Centre (WLC) sought an order invalidating certain relevant statutory provisions as unconstitutional. The South African Commission for Gender Equality (CGE) acted as amicus curiae in the entire proceedings. The central question that the Constitutional Court was faced with concerned the constitutionality of the institution of male primogeniture under South Africa’s inheritance laws (statute-based and customary). In particular, the validity under the Constitution of section 23 of the Black Administration Act 38 of 1927, the regulations made under that Act, and section 1(4)(b) of the Intestate Succession Act 81 of 1987 was challenged. Also in issue was the constitutional validity of the customary law principle of male primogeniture in the inheritance of property. In the process of articulating their reasons for declaring the relevant rule of male primogeniture and the laws that entrench it unconstitutional, many of the decisions in the case, in varying degrees, invoked the Charter for support. 22

23

See Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/2410.PDF at 2 and 12. See Bhe v. Magistrate Khayelitsha and others (consolidated and heard with Shibi v. Sithole); and South African Human Rights Commission and another v. President of the Republic of South Africa and another (2005) 1 BCLR 1 (Constitutional Court).

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In another indication of his exceptionally activist role in facilitating the limited percolation of the African system’s norms into the South African legal order, Ngcobo J relied quite heavily on the African Charter in crafting his partial dissent from the majority opinion. In the first instance, in considering whether the customary law rule that the eldest child (male or female) ought to inherit the estate of a deceased parent was unfair discrimination (an issue that was side-stepped in the majority opinion) Ngcobo J relied to a substantial extent on ‘‘the obligation to care for family members’’ that is imposed by the African Charter; a duty he described as ‘‘a vital and fundamental value in [the] African social system.’’24 Thereafter, he pointedly referred to and reproduced the relevant texts regarding the obligations owed by individuals to their family and society under articles 27 and 29 of the Charter.25 He also relied on and quoted the Preamble to the Charter, which charged member states to take these values into consideration in their formulation of human rights decisions.26 Proceeding to apply this logic, Ngcobo J then engaged in a rigorous tour d’horizon of the nature and basis of indigenous South African customary law in the area of inheritance rights.27 His conclusion was that the rule that the eldest child (female or male) stepped into the shoes of a deceased parent is meant to ensure that ‘‘someone takes over the responsibilities of family head’’ and that entrusting the responsibility of administering the deceased’s property on behalf of the entire family to the eldest child was consistent with that person’s responsibility to care for her/his younger siblings, and the need for certainty in such cases.28 In the end, Ngcobo J was satisfied that the limitation imposed on the non-discrimination rights of the other siblings by entrusting the responsibilities of a family head to the eldest child was a reasonable and justifiable one.29 On the question whether the customary law rule of male primogeniture in property inheritance was unconstitutional, his legal reasoning followed a similar structure. Based on his analysis of the historical purpose that the rule served in traditional South African communities as well as elsewhere in Africa, and the fact that he was of the view that the rule was no longer appropriate in the current political economy in which women do play or ought to play a key role in the economy, he came to the conclusion that the rule had now ‘‘outlived its usefulness.’’30 In strengthening his constitutional argument against the continued validity of this rule, he drew direct support from 24 28

Ibid. at para. 166. 25 Ibid. 26 Ibid. 27 Ibid. at paras. 167–182 especially. Ibid. at paras. 180–181. 29 Ibid. at para. 183. 30 Ibid. at para. 210.

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article 18 of the African Charter which requires states parties to the Charter to put an end to gender inequality within their countries.31 Interestingly, he also referred to and approved of the decision in the celebrated Nigerian case of Muojekwu v. Ejikeme (a decision that was discussed in some detail in chapter 4), in which the Court of Appeal of Nigeria had itself relied on the African Charter to invalidate a customary law rule that discriminated against women.32 However, Langa DCJ (in whose judgment all the other judges, save Ngcobo J concurred) relied in a more minor way on both the African Charter and that treaty’s Protocol on the Rights of Women in Africa (‘‘the Women’s Protocol’’).33 In the first instance, Langa J invoked, inter alia, the African Charter and its Women’s Protocol to underscore the appropriateness of the gender equality ethos that animates the South African Constitution and the need to abolish all laws that discriminate against women in that country.34 In a second move, he cited the Charter, inter alia, to buttress the sanctity of the general non-discrimination norm and its application in the children’s rights area.35 In both cases, however, Langa J placed as much reliance on United Nations human rights instruments. Worthy of note as well is the fact that he also engaged in a more substantive discussion of the merits of applying the African Charter on the Rights of the Child to the present matter – a treaty the consideration of which is, strictly speaking, beyond the defined scope of this book.36 Regarding the role that activist forces played in this case in mediating the subtle percolation of the African system’s norms into the legal reasoning of the South African judiciary, it must be said at the outset that, at the very least, Ngcobo J, and to a lesser extent Langa J, were the main brainy relays or intelligent transmission-lines that creatively eased the African system’s normative energy and values into a generally dualist South African legal order in which they have so far not yet been directly incorporated. Neither judge was really complying with any decision of the African Commission or provision of the Charter. The correspondence 31 33

34 35

Ibid. at para. 209. 32 Ibid. at para. 194. See the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the Second Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (13 September 2000); reprinted in (2001) 1 African Human Rights Law Journal 40, entered into force on 25 November 2005, available at www1.umn.edu/humanrts/africa/protocol-women2003.html. See the Bhe case, supra note 23, at para. 51. Ibid. at para. 55. 36 Ibid. at paras. 53 and 55.

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that was produced in this case between the African system’s norms and South Africa’s laws relating to property inheritance was largely as a result of the activism of these judges, and could not easily have been picked up by the compliance-centered radar. Unfortunately, however, although several notable South African CSAs were formally involved in this case in one way or the other (including the Legal Resources Centre, the Women’s Legal Centre, and Lawyers for Human Rights), none of the briefs filed in this case by these CSAs utilized the African Charter to any significant extent.37 It was largely up to the relevant judges, in their role as activist forces, to play the stated facilitative role. In the Volks No case,38 the major focus of the dispute was the rights of an unmarried surviving female partner of a deceased adult male, and with whom she had ‘‘lived a life akin to that of husband and wife.’’39 Under the extant law, because she was not married to the deceased, she was denied the right to claim ongoing maintenance from the residue of his estate. She had, however, been provided for to some extent in the deceased’s last will and testament. Assisted by the Women’s Legal Centre, she challenged the constitutionality of the distinction drawn under South African law in this connection between married and nonmarried surviving partners.40 The majority of the Constitutional Court found against Ms. Robinson and held that since it is, in their view, inappropriate that an obligation that did not exist before death be posthumously imposed, it is not unfair in these kinds of post-death maintenance cases to make a distinction between survivors of a marriage on the one hand and survivors of a heterosexual cohabitation relationship on the other.41 In the majority’s view, it was up to the legislature to pass separate legislation to address the vulnerability of women in such situations. The majority opinion did not, however, invoke the African Charter in any significant way. Similarly, none of the three dissenting judges (Mokgoro, O’Regan, and Sachs JJ), cited or referred to the African Charter in any noteworthy way.42

37

38

39 42

For example, see Applicants’ Submissions (Bhe), available at www.constitutionalcourt. org.za/Archimages/1438.PDF; Plaintiff’s Submissions (Shibi), available at www. constitutionalcourt.org.za/Archimages/2251.PDF; and Applicants’ Heads of Argument (SAHRC case), available at www.constitutionalcourt.org.za/Archimages/2226.PDF. See Richard Gordon Volks No v. Ethel Robinson and others (2005) 5 BCLR 446 (Constitutional Court). Ibid. at para. 1. 40 Ibid. at para. 8. 41 Ibid. at paras. 60–68. Ibid. at paras. 98–145 and 146–242.

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Happily, in yet another demonstration of his solid commitment to actively facilitate the informal percolation of African system norms into the South African legal order, Ngcobo J easily distinguished himself from the rest of the court by being the only judge who significantly invoked the African Charter in this case. In seeking to underscore and legitimize one of the key organizing logics of his separate concurring opinion in this case, which was that since marriage is a constitutionally recognized institution in South Africa’s constitutional democracy, the law may legitimately afford protection to married people which it does not accord to unmarried people, he copiously referred to and relied on article 18 of the African Charter in order to justify his constitutional argument.43 In his own words: The constitutional recognition of the right freely to marry and the institution of marriage is consistent with the obligations imposed on our country by international and regional human rights instruments which impose obligations upon states to respect and protect marriage. The African [Banjul] Charter on Human and Peoples’ Rights, 1981 recognizes the importance of marriage and the family.44

Regretfully, however, just like in the Bhe case, the direct contribution of the CSAs which formally participated in this case to the appreciable percolation of the African system’s norms that occurred was insignificant. For one, none of the briefs filed by the two CSAs which were either parties to the case or appeared before the court as amicus curiae (namely the Women’s Legal Centre and the Centre for Applied Legal Studies) even as much as mentions the African Charter.45 It does appear, therefore, that it was Ngcobo J who deserves most of the credit for the creative invocation of the African Charter in this case. He was the major activist force that facilitated the Charter’s impact on judicial reasoning in this case. In the Dawood case,46 the Constitutional Court considered, inter alia, the question of the constitutionality of provisions of South African 43 44 45

46

Ibid. at paras. 81–87; especially paras. 82 and 85. Ibid. at para. 82. For example, see Respondents’ Heads of Argument, available at www.constitutionalcourt. org.za/Archimages/3295.PDF; and Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt.org.za/Archimages/3296.PDF. See Rahim Dawood v. Minister of Home Affairs and others (consolidated with Shalabi v. Minister of Home Affairs and others and Thomas v. Minister of Home Affairs and others) (2000) 3 SA 936; (2000) 8 BCLR 837.

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immigration law that could result in a non-citizen spouse of a South African citizen being forced to leave the country and remain abroad while her or his application for an immigration permit was being processed. In each of the cases that were heard together in this matter, the applicants were married to each other, one spouse was lawfully resident in South Africa, and the other spouse sought to obtain an immigration permit to reside permanently in South Africa. The applicants argued that the effect of the relevant provision of the law was to deny spouses the right to cohabit, and that this violated the Constitution.47 Noting that the South African Constitution does not explicitly refer to the right to family life (including the right and duty of married couples to cohabit as a key aspect of this right), O’Regan J, in whose judgment the rest of the court concurred, read this right into that document’s right to dignity provision.48 In reaching this conclusion, she relied, in part, on the fact that article 18 of the African Charter recognizes the ‘‘vital importance’’ of marriage and imposes ‘‘a state obligation to protect the family.’’49 It was on this basis that she proceeded to argue that the protection of the right of married couples to cohabit was so important a constitutional norm that it was unconstitutional for the relevant provisions to result in the coerced departure from South Africa of a non-citizen spouse of a South African citizen. Here again, it was the judges in this case who acted as the brainy relays that mediated the impact that the African Charter had in this case. None of the briefs filed in this case and reproduced on the court’s website refers to the African Charter in any significant way.50 This is so despite the fact that counsel for the applicants in this case was instructed by the University of Cape Town Legal Aid Clinic and the Legal Resources Centre, two important activist forces in South Africa. In the Baloyi case,51 the issue before the Constitutional Court was the constitutionality of a special procedure under the then Prevention of Family Violence Act 133 of 1993 of South Africa that allowed those who had previously been issued a kind of ‘‘restraining order’’ or ‘‘interdict’’ (that required them to refrain from threatening or perpetrating violence against a member of their family) to be brought before a magistrate for an enquiry and to be summarily convicted. In articulating his reasons 47 50

51

Ibid. at para. 27. 48 Ibid. at paras. 28 and 34–39. 49 Ibid. at paras. 29–30. For example, see the Applicant’s Supplementary Heads of Argument, available at www.constitutionalcourt.org.za/Archimages/2765.PDF. See State v. Godfrey Baloyi and others (2000) 1 BCLR 86 (Constitutional Court).

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for upholding the constitutionality of this special procedure (while noting that it would likely detract to some extent from some of the protections normally enjoyed by accused persons in other kinds of criminal proceedings, such as an accused person’s right to silence), Sachs J repeatedly invoked the justification of the ‘‘grave social ill’’52 posed by domestic violence and the fact that the Constitution and South Africa’s international obligations require ‘‘effective measures to deal with the gross denial of human rights resulting from pervasive domestic violence’’ in South Africa.53 He thereafter cited and invoked the African Charter as one of the principal international instruments which imposes that imperative obligation on South African institutions.54 Here again, it was the judges in this case, led by Sachs J, who almost exclusively served as the intelligent transmission-lines that enabled a provision of the African Charter to percolate into and contribute to some degree to the judicial reasoning in this case. As in some of the cases already discussed, CSAs did not play any appreciable direct role in the process through which the Charter was deployed within this judgment. In any case, none of the briefs filed in this case mentions the African Charter including that filed by the CGE, an official human rights institution which intervened in this case.55 In Makwanyane (the capital punishment case),56 the Constitutional Court declared capital punishment unconstitutional. In coming to this conclusion, at least two of the judges of this court sought to strengthen their constitutional arguments by a reliance, inter alia, on the African Charter’s prohibition of the arbitrary deprivation of life. Both Chaskalson and O’Regan JJ cited and made some use of the African Charter, albeit in a limited way. Chaskalson J noted (with added emphasis) that the Charter prohibited the arbitrary deprivation of life.57 But it is not entirely clear the exact weight he attached to the African Charter. What is clear, though, from the emphasis that Chaskalson J added to the relevant text, is that the Charter’s prohibition of the arbitrary deprivation of life clearly weighed favorably on his mind; clearly strengthened his legal logic; and definitely helped point his judgment in a particular direction.58

52 53 55

56 57

Ibid. at para. 30. See also paras. 11, 12, and 18. Ibid. at para. 26. 54 Ibid. at para. 13. See Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/2629.PDF. See State v. Makwanyane (1995) 6 BCLR 665 (Constitutional Court). Ibid. at para. 36 and n. 52. 58 Ibid.

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Furthermore, as significant as it was in shaping her judicial logic, O’Regan J’s use of article 4 of the African Charter was not as substantial as it could have been.59 Here again, there is little evidence that CSAs played a direct role in the generation of the correspondence that occurred. In State v. Williams,60 the matter concerned five different cases in which different magistrates had convicted six juveniles of various offences and had sentenced each of them to receive a number of strokes of a light cane. The main issue for determination was whether the imposition of a sentence of juvenile whipping was consistent with the provisions of the South African Constitution of the time. The Constitutional Court relied in part on the African Charter to legitimize both the content and their own interpretation of provisions of section 11(2) of the then Interim Constitution of South Africa that prohibited torture and cruel, inhuman, and degrading treatment or punishment. The court cited three international human rights treaties, including the Charter, as part of its attempt to show the appropriateness of the absolute tenor of the prohibition in that domestic provision.61 As in the above cases, there is little indication of direct CSA influence in driving the process via which this correspondence was generated. In State v. Viljoen,62 the High Court of Transvaal in South Africa (per Patel J) was faced with a challenge that had been launched by a criminally accused person against a proposal to hold a trial within a trial. The accused contended that he had a right to know if his constitutional rights to counsel and to silence at the plea proceedings had been violated before the trial within a trial could be held. He had alleged that he had confessed to the crime for which he had been charged under conditions of ill-treatment and torture; had not been given access to counsel; and was not told of his right to silence at the plea proceedings. In agreeing with the accused and holding that his constitutional rights to have counsel during the investigation of the crime as well as to keep silent at the plea proceedings had been violated, the court relied, inter alia, on the fair hearing provisions in article 7 of the African Charter.63 In a context that demonstrates the role of the Charter as a useful strengthening and legitimization resource, the court reproduced the text of article 7(1) of the African Charter and explicitly noted that, ‘‘it needs

59 60 61

See ibid. at para. 324 of the judgment (and n. 1 of O’Regan J’s separate opinion). (1995) 7 BCLR 861 and (1995) SACLR LEXIS 249 (especially at 12). Ibid. 62 (2003) 4 BCLR 450 (T). 63 Ibid. at para. 27.

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to be pointed out that the Republic of South Africa is a signatory to the African Charter on Human and Peoples’ Rights.’’64 Here, regardless of counsel’s disposition to the use of the African Charter, which remains unclear, it was the judge who drove the attempt to establish some sort of correspondence between a provision of the African Charter and an aspect of South African law.65 In so doing, the judge also facilitated the percolation of the African Charter into her own judicial reasoning. In Hoffman v. South African Airways,66 the appellant, who was HIV positive and had applied for a position as a member of the cabin crew of South African Airways (SAA), had been denied that job. This denial was justified by SAA on the basis that, because of operational and medical/ safety considerations, SAA did not hire HIV-infected persons in that particular position. SAA did not so discriminate in relation to other kinds of positions. The Constitutional Court upheld his appeal from the decision of the High Court denying his claim. Seeking to further strengthen, justify, and/or legitimize his own interpretation of the requirements of the non-discrimination provisions of the South African Constitution, Ngcobo J stated as follows: The need to eliminate unfair discrimination does not arise only from Chapter 2 of our Constitution. It also arises out of international obligation. South Africa has ratified . . . the African Charter . . . In the preamble to the African Charter, member states undertake, amongst other things, to dismantle all forms of discrimination. Article 2 prohibits discrimination of any kind. In terms of Article 1, member states have an obligation to give effect to the rights and freedoms enshrined in the Charter.67

Such a noteworthy but still limited reference to the African Charter was also made in Potgieter en’n Ander v. Kilian.68 In this defamation case, the question before the Natal Division of the then Supreme Court of South Africa was how to weigh the right of a person to dignity against the right of another person to freedom of expression. In working out the technical meaning that the word ‘‘dignity’’ possessed in this context, it relied in part on the wording of the African Charter (which refers to the ‘‘dignity inherent in a human being’’) preferring it to the meaning of that word under Roman-Dutch law.69 Here, the African Charter was one key

64 68 69

Ibid. (emphasis added). 65 Ibid. 66 (2000) 11 BCLR 1211. (1995) 11 BCLR 1498 (N). See also (1995) SACLR LEXIS 272. Ibid. at paras. 88–89.

67

Ibid. at para. 51.

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interpretive resource that was deployed by the court.70 Here again, regardless of counsel’s disposition to the use of the African Charter, the judges themselves seemed to be the key drivers of a strategy of strengthening their own judicial logic through the utilization of the contents of the African Charter.71 The African Charter was made to perform a similar, though clearly more modest, strengthening and legitimization function in the South African case of Ferreira v. Levin No.72 In this case, the African Charter was relied on (by Chaskalson P) alongside other such international human rights treaties. The pertinent facts of the case are that a lower court had dismissed the applicant’s suit for an order prohibiting the respondents from further interrogating them, and had referred it to the Constitutional Court. The applicants had claimed that the order was necessary as their continued interrogation could lead to self-incrimination contrary to the provisions of section 25 of the South African Constitution, and/or to a contravention of their right to freedom and the security of the person under section 11 of that Constitution. In issue was the constitutionality of a provision of the South African Companies Act of 1973 that imposed an obligation on any person summoned for examination in respect of the affairs of a company to answer any question put to him at the examination notwithstanding that the answer might tend to incriminate her or him. The majority of the court struck down a portion of the relevant provision of the Companies Act to the extent that it authorized the use of any evidence obtained from such interrogations in subsequent criminal proceedings. The court reasoned that since the provision partly violated both section 11 and section 25 of the Constitution, it was unconstitutional to that extent. In the process of clarifying the meaning of the expression ‘‘freedom and the security of the person’’ as used in section 11, the court relied, in part, on the way in which it is used in the African Charter.73 Thus, although the role played in this case by the African Charter was clearly not pivotal, it was significant nevertheless. It appears as well that, regardless of the role played by counsel in bringing the Charter to the attention of the court, the relevant judge himself, in this case Chaskalson P, as he then was, functioned as the activist force that propelled the Charter to relevance, however minor, in this decision, and sought to forge a measure of 70 72 73

Ibid. 71 Ibid. (1996) 1 BCLR 1 (Constitutional Court). See also (1995) SACLR LEXIS 298. Ibid. at para. 170.

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correspondence between a norm of the African system and an aspect of South Africa’s legal system. The African Charter played an equally modest role in Case v. Minister of Safety and Security (concerning the right to information).74 Here, although the African Charter was not central to the formulation of the decision, it was a significant factor. The pertinent facts of that case were that the applicants had been arraigned before a magistrate’s court on charges of possessing obscene material in contravention of the South African Indecent or Obscene Photographic Matter Act of 1967. The question was whether the relevant provision was overbroad and therefore unconstitutional. The Constitutional Court of South Africa found that the law was indeed unconstitutional for that reason and struck it down. Mokgoro J read a separate opinion outlying her reasons for agreeing with the rest of the court. She justified portions of her arguments by citing article 9 of the African Charter (on the unqualified right to receive and transmit information) alongside other international treaties.75 In her own words, the nature of these provisions was ‘‘significant’’ to her in forming her opinion in the present matter.76 It is important to note that the point that is being made here and in the rest of the chapter is not that the African Charter or other components of the African system have been the only factors that have influenced these cases. The point is precisely that in most such cases, the African Charter has been one important factor that has led to the convincing development of the legal position reached. In Mokgoro J’s own words, it was ‘‘significant that at least four international human rights instruments [at the top of which list she inserted the African Charter] provide specifically for the right to receive information under the general head of the right to free expression.’’77 In the Islamic Unity Convention case,78 as modest a reliance was placed on the African Charter by Langa DCJ (as he then was), who was writing for all the judges of the Constitutional Court. Here, the court referred in a footnote to article 9 of this treaty, among many other such provisions, in order to justify its argument that the right to freedom of expression is ‘‘one of the essential foundations of a democratic society.’’79 It was, in part, the importance of the enjoyment of this right 74 75 78

79

(1996) 5 BCLR 609 and (1996) SACLR LEXIS 3. Ibid. at para. 29 and n. 41. 76 Ibid. 77 Ibid. See Islamic Unity Convention v. Independent Broadcasting Authority and others (2002) 5 BCLR 433 (Constitutional Court). Ibid. at para. 28.

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that strengthened the court’s hands as it argued in favour of the invalidation of a provision of the Code of Conduct of Broadcasting Services that barred broadcasts of speech that was likely to prejudice relations between sections of the population.80 The court’s hand needed to be so strengthened because of the court’s recognition of the opposing imperative of guarding against speech that violates the right to dignity and other rights of sections of the population.81 Happily, in this case, it was not merely the judges who invoked the African Charter. That treaty was also cited and deployed by both sides to the argument. The two opposing CSAs in this case utilized the Charter in their arguments before the court. This point is discussed in more detail in section 5.5. Similarly, in Human Rights Commission of South Africa v. SABC,82 a tribunal of the South African Broadcasting Complaints Commission (BCC) was faced with a matter involving the broadcast of a song that was seen by many as propagating hate against South Africans of Indian descent. The question was whether a broadcast of the song by one Mbogeni Ngema amounted to hate speech in contravention of the Constitution and the Broadcasting Code. The BCC referred approvingly to the decision of the Constitutional Court in the Islamic Unity Convention case in which it had referred approvingly to article 9 of the African Charter and other such international instruments to legitimize the fact of South Africa’s commitment to reasonably limited free speech.83 In the Shabalala case,84 the Supreme Court of South Africa dealt with a matter concerning the constitutional right of a murder accused to obtain access to information held by the state, in this case the police docket, in order to be fully informed of the case against him. As part of its consideration of the relevant foreign case law and international instruments, the court made passing reference to a dictum from the judgment of Aguda J in the Unity Dow case (which is discussed much more fully in the next chapter).85 That dictum lauds the use of the African Charter as an interpretive resource in constitutional decisions. The key point here is that the African Charter was at least referred to by this court. This is not a high measure of its influence by any means, only a

80 82 84 85

Ibid. at paras. 27 and 44. 81 Ibid. at paras. 29–30. (2003) 1 BCLR 92 (BCC). 83 See ibid. at para. 25 and n. 5. See Shabalala v. Attorney General of Transvaal (1994) 6 BCLR 85 (T). Ibid. at 31.

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signification of its modest but nevertheless increasing visibility in a country where it has been rarely cited by the courts. A similar kind of passing reference to the African Charter was made in the Wittmann case.86 In that case, which involved the right to religious freedom, a custodial parent had sued a Pretoria school for compelling her minor child to attend school prayers and religious instruction. The court held that she had waived the right to opt out of school prayers by signing a waiver form at the time of registering the child in the school. The court referred to the African Charter as a way of illustrating the diversity in the content of international provisions in favour of religious freedom. As this was not a very influential showing for the African Charter, the extremely modest arguments made in respect of the Shabalala case apply as well to this case. In the same vein, in the Laugh it Off Promotions case,87 Moseneke J, in whose decision the rest of the court concurred, used article 9 of the African Charter, inter alia, to underline the importance that the court must attach to the enjoyment of the right to freedom of expression contained in the South African Constitution. Here, the applicant had parodied the trademark of the respondent beer manufacturing company. The court found for the applicant and held that because the right to freedom of expression was of key importance, as underlined by the African Charter and other such treaties, it could not be lightly derogated from by the need to protect the respondent’s trademark. Thus, the role played by the Charter in this case was simply to help strengthen the court’s argument regarding the weight to be accorded to the applicant’s right to free speech.88 Here again, the activist force that propelled the Charter into relevance and modest influence was the judge. Regrettably, none of the parties to this case utilized the Charter in any appreciable way in the briefs they filed in this case.89 What is more, it does not appear that the CSA which appeared as amicus curiae in this case, the Freedom of Expression Institute, deployed the Charter in its arguments.

86

87

88 89

See Wittmann v. Deutscher Schulverein Pretoria (1999) 1 BCLR 92 (T). See also (1999) SACLR LEXIS 43. See Laugh it Off Promotions v. South African Breweries and another (2005) 8 BCLR 743 (Constitutional Court). Ibid. at para. 45 and n. 47. See Applicant’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/3193.PDF; and Respondent’s Heads of Argument, available at www. constitutionalcourt.org.za/Archimages/3194.PDF.

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In the Certification case,90 the Constitutional Court made minor reference to the African Charter as it sought to identify the sources to which it should turn for guidance in determining whether the Final Constitution of South Africa of 1996 should be certified as human rights compliant.91 This was not a wholly insignificant turn to the Charter. However, because the Charter was referred to here in a footnote, and even then, was cited alongside at least six other such documents, it cannot be said to have made any huge impact on the judicial reasoning in this case. In any case, the court itself deserves credit for facilitating whatever impact the Charter had on the reasoning in this case. Although the court was addressed by a large number of civil society actors, it is unclear what, if any, role these actors played in facilitating the minor domestic utilization of the Charter that occurred in this case. In the Jaipal case,92 the Constitutional Court was faced with a question regarding the possible violation of the constitutional right to a fair trial arising from the presence in the same office on a varying basis of the assessors, the prosecutor, the investigator, and a state witness, and the fact that they were seen in the same office by members of the public. Minor reference was made to the African Charter, and other such instruments, by the court in the process of underlying the importance of the right to a fair trial.93 Although the mere fact that the court thought to invoke the Charter in any way at all is significant in a South African context in which adherence to that document is relatively recent, and in which their Constitution is seen by many as one of the most all encompassing and progressive in the world, this was clearly not one of the instances in which the Charter played a key role in the process of judicial reasoning in South Africa. For one, the Charter was cited alongside two other international human rights instruments,94 and, what is more, it was cited in a footnote.95 Whatever the extent of the influence that the Charter had on judicial reasoning in this case, the bulk of the credit seems to belong to the judges in this case, especially van der Westhuizen J, who wrote the judgment of the court. As far as the records of the case show, no CSA played an

90

91 92 93

See Reference Re the Certification of the Constitution of the Republic of South Africa (1996) 10 BCLR 1253 (Constitutional Court). Ibid. at para. 50 and n. 46. See Shane Jaipal v. The State (2005) 5 BCLR 423 (Constitutional Court). Ibid. at para. 26 and n. 14. 94 Ibid. 95 Ibid.

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appreciable role in facilitating the limited utilization of the African Charter that occurred here.96 In the now famous Garreth Prince case,97 Mr. Prince, who sought to be licenced as an attorney, sued the Law Society of the Cape of Good Hope at the Cape High Court for refusing to register his contract with the Legal Aid Clinic of the University of Cape Town. Such registration would have enabled him to fulfill the precondition for his admission to the bar. The refusal to register the said contract was justified on the basis that, as he had two previous convictions for the possession of cannabis and had also expressed the intent to continue to use it, he was not a fit and proper person to be admitted to the bar. His suit to the court was to set aside the Law Society’s decision. He argued that his use of cannabis was an integral part of his Rastafarian religion. He also contended that, as such, his use of that drug was protected by his constitutional right to freedom of religion. Gareth Prince lost the case at High Court level, and appealed the decision right up to the Constitutional Court of South Africa. While the Charter does not seem to have played a visible role in the judgments of two of the three courts which adjudicated the dispute at the domestic level (that is, the Supreme Court of Appeal (SCA) and the South African Constitutional Court (CC)), it did play a significant role, however minor that role was, in the reasoning process of the Cape High Court.98 That court did reproduce article 8 of the African Charter and did recognize its relevance to the matter at hand, but left it unclear as to the exact impact that the Charter had on its reasoning.99 Surprisingly, the Charter was neither referred to nor discussed in the judgment of the SCA in this case.100 Similarly, although both the appellant’s and fifth respondent’s heads of argument in the CC (also known as factums or briefs) did cite and discuss article 8 of the Charter,101 neither that provision nor any other portion of the Charter was cited or referred to in any way in the text of

96

97

98 100

101

For the arguments made in this case, see www.constitutionalcourt.org.za/uhtbin/ cgisirsi/rHRs9y1VKp/0/57/518/0/H-CCT21-04. See Prince v. President Law Society Cape of Good Hope and others (1998) SACLR LEXIS 16 at 31 (High Court). 99 Ibid. Ibid. See Prince v. President Law Society Cape of Good Hope and others (2000) (3) SA 845 (Supreme Court of Appeal). See Appellant’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/1273.PDF at 50 and Fifth Respondent’s Heads of Argument, available at www.constitutionalcourt.za/Archimages/1271.PDF at 55.

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that top court’s decision.102 In any case, both the SCA and the CC found against Gareth Prince. The matter was subsequently brought before the African Commission. It will come as no surprise that, at this international level, the Charter proved pivotal to the outcome. Even in some of the more marginal of these cases, the invocation and deployment of the African Charter by activist judges and/or CSAs either helped enable the availability and authoritative adoption of previously unavailable normative reformulations, or strengthened the hands of the judges in some way. In some of these cases, the African system was invoked by activist judges in response to the arguments presented by activist lawyers and CSAs. In many of the cases, it was the relevant activist judges who invoked the Charter virtually suo motu. In virtually all of the above cases, the preferred normative formulations or understandings were more or less influenced (often in subtle ways) by the invocation of the African system by activist forces, mostly activist judges. The manner in which many of these invocations and deployments played out adds credence to the broadly constructivist account of the possibility of appreciable IHI impact beyond the cognition of the compliance radar. The process via which these formulations were adopted, and through which reformulations took root, bore the hallmarks of a broadly constructivist story. There was not necessarily any direct compliance with the African system’s decisions.

5.3 Impact on executive deliberation and action The argument that is developed in this section is that the African system has (partly because of the mediatory role that has been played by local activist forces such as CSAs and activist judges) made an appreciable, if limited, impact on the deliberations and actions of the executive branch of government within South Africa. The point that is made is not, of course, that the African system ‘‘caused’’ the observed phenomenon to occur in the same way that a slap on a human being’s wrist usually causes pain. The point is that the system has, in a subtle way, helped foster a valuable level of correspondence between the thinking and behaviour of the executive branch within South Africa and the norms of the African system itself.

102

See Prince v. President Law Society Cape of Good Hope and others (2002) 3 BCLR 231 (Constitutional Court).

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The relevant activist forces often played a brainy relay role that helped transmit the African system’s normative energy into the domestic realm, in a way that is not easily captured by the ‘‘compliance’’ radar. In many cases, these activist forces helped create an enabling environment for the executive to pay greater attention to the African Charter (for example, by pressuring it to file its reports to the African Commission or to consult them as they wrote the Charter; by using the Charter in the arguments they made against the government in judicial fora; or by engaging in publicity campaigns to popularise the Charter among government functionaries and non-governmental actors within South Africa). The activities of the Human Rights Institute of South Africa (HURISA) are particularly instructive in this respect.103 Inter alia, this CSA has undertaken training programs to educate government officials and institutions on the relevance of the African system to their work.104 In other instances, some of these activist forces, especially the judges, played a more direct facilitative role. Either way, they deserve some credit for the limited impact that the African system has had within South Africa. The limited influence that the African system has exerted within South Africa to date is illustrated by the following discussion. First, Thabo Mbeki, the current President of the country, who is of course the head of the executive branch, has on at least one important occasion publicly offered an indication of the extent to which the norms of the African system have positively affected his government’s thinking with regard to gender equality, and in his stride, has also demonstrated the seriousness with which he regards the African Charter and its Women’s Protocol. In his 2004 speech on the occasion of the fortyeighth anniversary of South Africa’s National Women’s Day, President Mbeki lauded the adoption within the African system of the Women’s Protocol, invoked its obligations in making an argument in favor of concerted efforts toward the improvement of the status of women, and declared that: This [that is the adoption of the Protocol] is important because the Protocol addresses the central challenge of the emancipation of African women and goes beyond the simple recognition of the rights of women, but enjoins all Africans actively to remove all forms of gender discrimination,

103 104

See HURISA, and the African Commission, available at www.hurisa.org.za. Ibid.

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integrating the gender perspective in policy decisions, legislation, development plans, programmes and activities, and demands that corrective and positive action should be taken in those areas where discrimination against women continues to exist.105

Secondly, the executive branch has sometimes deployed the African Charter as a resource in formulating its key domestic policy documents. For example, in its major policy document on racism, the executive branch invoked the Charter and other African human rights documents as justificatory resources that reinforced the argument it made in the Preamble to that document concerning the ‘‘universal abhorrence of racism.’’106 Similarly, its policy statement on gender equality explicitly states that that document is ‘‘informed by the values and principles in the instruments cited’’ within it, one of which is the African Charter. The document also states that ‘‘the African Charter entrenches the pursuit of non-sexism as a human rights priority on the continent of Africa’’ and that ‘‘the reporting guidelines on the Charter also highlight the issues of ending violence against women and achieving the economic empowerment for [sic] women.’’107 Thirdly, the internal operations of the Department of Justice and Constitutional Development (DOJ) have to some extent also been impacted by the norms of the African system. For instance, it was noted in the evaluation of its program performance during the 2002/ 2003 assessment year that one of its program objectives for that period was to ‘‘demonstrate South Africa’s commitment to the promotion and protection of human and peoples’ rights and raise awareness regarding the African Human Rights Systems’’ and also that this objective had been furthered by the hosting of the thirty-first ordinary session of the African Commission by South Africa in May 2002.108 The same evaluation document noted that another of the DOJ’s program objectives during the relevant period had been to ‘‘take active part in the

105

106

107

108

See President Thabo Mbeki, Speech on the 48th Anniversary of National Women’s Day, available at www.dfa.gov.za/docs/speeches/2004/mbek0811.htm (emphasis added). See the South African Millennium Statement on Racism and Programme of Action, 2 September 2000, available at www.sahrc.org.za/_racism_and_programme_.PDF (‘‘the Millennium Statement’’). See Gender Policy Statement: Balancing the Scales of Justice through Gender Equality, May 1999, available at www.doj.gov.za/2004dojsite/policy/gender/genderpolicy.htm at 10. See Annual Report of the Department of Justice and Constitutional Development 2002/2003, available at www.doj.gov.za/2004dojsite/reports/anr0203/2003_anr_part2.pdf at 22.

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establishment of the new African Court on Human and Peoples’ Rights,’’ another institution of the African system (‘‘the African Court’’) and concludes that the DOJ did indeed do so by working to secure South Africa’s ratification of the Protocol that established that court and by calling on other states to do the same.109 Thus, without strictly speaking aiming formally to comply with any decision of the African Commission or provision of the African Charter, the internal workings of the DOJ were still positively affected in this way by the African system. CSAs like HURISA exerted some pressure on the DOJ to take an active role in the establishment of the new court.110 As noteworthy here is the fact that the DOJ has begun the process of introducing a Bill into the South African Parliament that would domesticate the African Charter and make it a formal part of the corpus of South African laws.111 The Bill has been prepared and is currently in the consultation phase.112 Again, it is difficult, if at all, possible to think of this internal process within the DOJ as a form of compliance with a decision or norm of the African system. Rather, it is best thought of as a form of subtle impact on the domestic behavior of the executive branch, a solid indication of the seriousness with which they regard the Charter. Fourthly, the executive branch has on a number of occasions moved to make important legislative changes in positive response to certain decisions of the Constitutional Court that had themselves been impacted to some extent by the African Charter. Although the legislative function in South Africa is mostly within the control of its Parliament, the executive branch does play a key role in terms of the introduction of government Bills or other such legislative proposals. It is in accordance with this power, and in significant response to the decision of the court in the Bhe case (in which the African Charter was invoked in an appreciable way) that the South African Cabinet approved and introduced into Parliament a Bill to repeal the Black Administration Act of 1927

109 110

111

112

Ibid. See HURISA Project Report on the 37th Session of the African Commission, 7 November 2005 (on file with the author) at 2–3. See also the website of the Coalition for an Effective African Court on Human and Peoples’ Rights, www.africancourtcoalition. org/eng_about_us.html. For HURISA’s membership in this coalition, see www. amtdatatechnologies.com/acc/UploadedDocuments/1116200541518PM359.doc. See Annual Report of the Department of Justice and Constitutional Development 2004/ 2005, available at www.doj.gov.za/2004dojsite/reports/anr0405/200405%20content. htm at 27. Ibid.

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(a section of which was invalidated in that case).113 It was also in partial response to that case that the executive branch began work in 2004/05 on a Bill to regulate customary succession in South Africa.114 In this story, activist forces invoked the African Charter to help produce a particular kind of judicial decision and that outcome in turn helped trigger a positive executive response. A similar story played out with respect to the invalidation in Case v. Minister of Safety and Security of section 2(1) of the Indecent or Obscene Photographic Matter Act, 1967. In a partial response to that decision, the executive introduced a Bill that resulted in the enactment of the Film and Publications Act, 1996. A combined reading of section 33 of and Schedule 12 to the new Act makes it clear that it was, inter alia, enacted to repeal the former Act.115 The executive branch’s response to the Dawood case, in which the invalidation of section 25(9)(b) of the Alien Control Act of 1991 was significantly influenced by the deployment of the African Charter, was no less positive. In a partial reaction to that decision, it introduced a Bill into Parliament that eventually resulted in the repeal of the old Act and its replacement by the Immigration Act of 2002.116 Fifthly, the work of the South African Human Rights Commission (SAHRC) has been affected to a limited extent by the indirect percolation into this institution of the norms of the African system. In a report on its prisons project, the SAHRC itself invoked the African Charter as a resource that it must utilize in interpreting the Kampala Declaration and Program of Action, a key document that it explicitly relies on for guidance in the deliberations and operations related to its prisons reform project.117 In its own words, ‘‘these documents have to be read in light of the African Charter.’’118 In a report on economic and social 113

114 115

116

117

118

See the Repeal of the Black Administration Act and Amendment of Certain Laws Bill, 2005, Bill B25–2005, 12 August 2005, available at www.doj.gov.za/2004dojsite/ legislation/bills/b2005/repeal_black_admin.pdf. Clause 1(6) of this Bill aims to repeal s. 23 of the above-mentioned Act. See also Annual Report of the Department of Justice and Constitutional Development 2004/2005, supra note 111, at 21 and 28. Ibid. at 21. See Initial Report of South Africa to the African Commission, 1998 (on file with the author) at 47. See First Periodic Report of South Africa to the African Commission, 2001, submitted in November 2005 (on file with the author) at 55; and (2002) 443 Republic of South Africa Government Gazette No. 23478, 31 May 2002. See SAHRC, Report of the National Prisons Project (29 August 1998), available at www.sahrc.org.za/prisons_report.PDF at 4. Ibid.

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rights, the SAHRC also invoked the Charter as an interpretive tool with regard to the delimitation of the scope of the South African government’s constitutional obligations with respect to such rights.119 In another report on the human rights of the San indigenous peoples in South Africa, the SAHRC extensively deployed the Charter’s guarantee to all peoples of the right to economic, social, and cultural development, with due regard to their freedom and identity.120 It also invoked the other applicable human rights provisions in the Charter.121 The SAHRC’s invocation of the Charter in this context was aimed at strengthening its arguments regarding the need to protect indigenous peoples in South Africa. Also, in the Human Rights Commission of South Africa case,122 which has been discussed in section 5.2, the SAHRC’s work in the area of prohibiting and suppressing hate speech was undoubtedly strengthened by the positive outcome for the Commission in that case. This result bore a significant relationship to the use of the African Charter by the relevant tribunal. There, the invocation of the Charter by the tribunal strengthened the SAHRC’s position on hate speech and provided even more justification for its efforts to combat it within South Africa. With regard to the role of activist forces in the domestic percolation of the Charter in these instances, it must be noted at the outset that the SAHRC’s operations were positively affected by a domestic context in which CSAs like HURISA have made appreciable efforts to facilitate the transmission into South Africa of the normative energy of the African system.123 What is more, HURISA (and other such CSAs) have made direct efforts at interacting with the SAHRC itself in order to promote the greater use of the African Charter by that body.124 Sixthly, although the Commission on Gender Equality (CGE) has made little appreciable use of the African Charter in its internal operations, on a few occasions it has still deployed the Charter in a significant, if minor, way. For instance, CGE Commissioner Gertrude Fester made 119

120

121 122 123 124

See SAHRC, Economic and Social Rights Baseline Information, 1997–1998, available at www.sahrc.org.za/socio_economic_report_main.PDF at para. 2.2. See SAHRC, Report on the Inquiry into Human Rights Violations in the Khomani San Community of South Africa (November 2004), available at www.sahrc.org.za/ KHOMANI_SAN_ENGLISH_FINAL.pdf at 3, 12, and 34. Ibid. See Human Rights Commission of South Africa v. SABC, supra note 82. For example, see HURISA Project Report, supra note 110, at 1–3. Ibid.

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passing reference to the Charter in a speech at a European Union conference in Ireland.125 The CGE also convened a consultative conference in 2003 on what was at that time a draft of the Women’s Protocol to the African Charter.126 This is an indication of some commitment, however modest, on the part of the Commission to deploy the African system in its own work within South Africa. It was not under any obligation so to do. The African system had obviously had some positive effect on the deliberative process that resulted in the decision to convene this conference. In the same vein, regardless of the fact that the South African Law Commission (SALC) seems to have on the balance eschewed reference to or use of the African Charter in its work, that body has nevertheless deployed the Charter in at least two of the twenty-five issue papers that it published on its website. In its issue paper on trafficking in humans, it refers to the Charter alongside a number of United Nations documents.127 Its issue paper on privacy and data protection also invokes the Charter.128 Here again, the SALC was under no compliance obligation as such, and was affected in a more subtle manner by the percolation of the African Charter into the South African legal order. As importantly, the executive branch of the South African government has sometimes deployed the Charter in seeking to strengthen the constitutional arguments that it has made to the courts in that country. This is one other way in which the Charter has percolated into the realm of executive deliberation and action and exerted an appreciable degree of domestic influence within South Africa of a kind that is not easily cognizable by the compliance-centered optic. For example, in the Kaunda case129 the joint brief filed in the Constitutional Court by counsel for the executive branch (the respondents) invoked the Charter in a noteworthy way. It did so in order to buttress the executive’s argument that the state was not in every case obligated by law to provide diplomatic 125

126

127

128

129

See G. Fester, Challenges to Promote Gender Equality: Some Lessons from South Africa (6 May 2004), available at www.cge.org.za. See Annual Report of the Department of Justice and Constitutional Development, 2003/ 2004, available at www.doj.gov.za/2004dojsite/reports/anr0304/0304anr_p2.pdf at 75. See Issue Paper No. 25, available at wwwserver.law.wits.ac.za/salc/issue/ip25.doc at viii, xi, and 5. See Issue Paper No. 24, available at wwwserver.law.wits.ac.za/salc/issue/ip24-intro.pdf at xxxv. (2004) 10 BCLR 1009 (Constitutional Court).

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protection to a citizen who was abroad.130 Another case in which the executive deployed a similar strategy is the Garreth Prince case.131 There, the Attorney General of the Cape of Good Hope, on behalf of the executive of that province, made significant use of the religious rights and non-discrimination provisions of the Charter in order to support and strengthen that government’s successful arguments before the Constitutional Court in this case. First of all, the Attorney General deployed the limitations clause in the religious rights provision in the African Charter in order to reinforce his argument. This argument was that a constitutional justification could be found for the limits placed on the exercise by Rastafarians of their right freely to practice their religion, via the criminalization of the use of cannabis by everyone in South Africa, including the Rastafarians who claim a religious obligation to smoke cannabis.132 Secondly, by arguing that Rastafarians excluded women from participation in certain of their core practices contrary to the Constitution and the African Charter, the Attorney General attempted to delegitimize the Rastafarian religion as one unworthy of protection under the constitutional guarantee of freedom of religion.133 In the Fourie case,134 which is yet another instantiation of the percolation of the African Charter into executive deliberation and action in South Africa, the Minister of Home Affairs deployed the Charter in a somewhat indirect way in order to strengthen the arguments he presented to the Constitutional Court. Although the Minister’s arguments in opposition to same-sex marriage were not successful in this case, our concern here is simply that the Charter was utilized in a way that suggested that it has had some impact on the deliberations and actions of the executive.135 Noteworthy here is the fact that the ‘‘considerable stress’’ placed by the Minister on this international law-based argument was acknowledged by Sachs J in his judgment.136 As interestingly, the invocation of the African Charter in the Kaunda case137 to the end of underlining the obligation on the executive

130

131 132 133 134

135

136

See Respondents’ Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/2409.PDF at 26. (2002) 3 BCLR 231 (Constitutional Court). See Fifth Respondent’s Heads of Argument, supra note 101, at 55. Ibid. at 83. See Minister of Home Affairs and another v. Marie Fourie and another, available at www.constitutionalcourt.org.za/Archimages/5257.PDF. See Applicant’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/5255.PDF at 17–18. See Fourie case, supra note 134, at para. 99. 137 See supra note 4.

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properly to consider a request by a South African citizen for diplomatic protection from another country and to examine the appropriateness of taking other steps to protect its citizens abroad from egregious human rights violations, will have important repercussions for the way in which the executive branch conducts foreign relations. While allowing a wide discretion to the executive in the foreign relations area, the decision has still imposed important limitations on its freedom of action. As such, although it remains unclear what direct role, if any, this decision played in the eventual release in May 2005 of the South African citizens detained in Zimbabwe on suspicion of involvement in a planned coup in Equatorial Guinea, the fact that some months later they were deported to South Africa (instead of being either retained in Zimbabwean detention as that country was entitled to do or sent on to Equatorial Guinea), suggests that some intervention on their behalf was made by the South African government. What is more, the conclusion that the Kaunda case had something significant to do with the early release of the accused mercenaries to the South African government is reinforced by the South African government’s reluctance throughout the process to intervene in the way that it eventually did post the Kaunda case.138 And finally, another indication of the kind of impact that the African system has had on the deliberations and action of the executive is the fact that this section of the government of South Africa did make the decision to deploy some of its scarce domestic resources to the eventually successful campaign to secure a seat on the African Commission for Dr. Barney Pityana, who was at the time the chairperson of the SAHRC.139 It also did the same some years later in favor of the election of Bernard Ngoepe J to the recently constituted African Court.140 More than anything else, this behavior on the part of the executive illustrates the importance that it attaches to South Africa’s active participation in the African system and the impact that the fulfillment of this desire for

138

139

140

According to a UN media report, ‘‘South African foreign affairs spokesperson Ronnie Mamoepa said that since Pretoria did not have an extradition agreement with any government, the alleged mercenaries would face legal action in the countries they were held in.’’ See IRIN News, available at www.irinnews.org/report.asp?ReportID=40005. For evidence of Barney Pityana’s membership of the African Commission and South Africa’s pride in this accomplishment, see Initial Report of South Africa to the African Commission (on file with the author) at 104. For evidence of Ngoepe J’s election to the African Court of Human Rights, see www.amtdatatechnologies.com/acc/UploadedDocuments/1242006115621AM718.doc.

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active participation in the system has had on its resource allocation decisions. In sum, the African system has had an appreciable, if limited, impact on the deliberations and actions of the executive in South Africa. The impact that was observed was in some cases directly facilitated by the efforts of activist forces (judges, CSAs, and so on). In other cases, the positive role played by these forces in the generation of such correspondence was not as direct. Either way, these activist forces served as brainy relays that helped facilitate the percolation of the African system’s norms into South Africa’s domestic sphere.

5.4 Impact on legislative debate and action The impact that the African system has had on the legislative process within South Africa has taken three main forms, each oiled and facilitated by the efforts of activist forces. The ranks of these activist forces have included activist judges in cases such as Kaunda and Bhe; the handful of CSAs like HURISA who have worked tirelessly to relay and redisperse the African system’s normative energy within South Africa; and the MPs who have gone out of their way to invoke the African Charter in their contributions to legislative debate. First of all, as was implied in section 5.3, the South African Parliament has on a number of occasions made important alterations to the body of South African laws in partial response to a number of the decisions of the Constitutional Court in which the legal reasoning that prevailed was significantly influenced by the African Charter. As these instances have been discussed already in detail in section 5.3, that discussion will not be repeated here. Suffice it to say that in those real life examples, activist forces invoked the African Charter to help produce a particular judicial decision that in turn helped trigger corresponding legislative change. Secondly, the government itself has acknowledged the way in which the consultative and deliberative process that has led to the enactment of at least some of its human rights legislation has taken ‘‘into account’’ the provisions of the African Charter.141 This is especially true with respect to the ‘‘equality legislation’’ that was initially produced as a result of the executive branch’s Equality Legislation Drafting Project.142 At least one key piece of legislation, namely the Promotion of Equality and 141 142

See Initial Report of South Africa to the African Commission (on file with the author) at 29. Ibid.

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Prevention of Unfair Discrimination Act, 2000, has been passed into law by the Parliament as a result of this project.143 Thirdly, the African Charter has on many occasions been invoked as an argument-enhancing resource within the South African Parliament. In the course of legislative debates or speeches, many MPs and some of the other participants in the debates have sometimes invoked the Charter to buttress their arguments. Regardless of the success of these arguments, the point that is being made here is that, as a result of its invocation by politicians who were activist in relation to one cause or the other, the Charter did have an appreciable impact on the legislative debate that went on within Parliament. A number of examples will suffice to illustrate this point. In the first example, the African Charter has been used by at least two MPs to strengthen their arguments about the character of South Africa’s policy on human rights violations in other countries. In a notice of motion which he presented in the National Assembly (NASS), one of the two chambers of Parliament, General C. L. Viljoen of the Freedom Front almost exclusively invoked the African Charter in urging the chamber to condemn the violence that was being perpetrated against some white farmers in Zimbabwe at that time.144 The motion sought a resolution of the house that would have declared that the NASS was ‘‘alarmed and dismayed that a member of state in our region, with the full support of the head of state, could allow the large-scale racial violation of the African Charter . . . and that he is allowed to get away with it’’ and that this legislative body ‘‘resolves that the South African Government, as a member state, will without delay lay a charge against Zimbabwe at the Organization of African Unity [now the African Union] for contravening the said charter.’’145 In this way, this MP urged his government to use the African system’s state-to-state petition procedure or other state complaint mechanism to bring pressure to bear on Zimbabwe to curtail the violence that was of concern to him. The African Charter was a key resource in the formulation and presentation of his argument. And regardless of his ideological leaning, he himself played the role of an activist force in facilitating the percolation of the Charter into the legislative debate on the relevant human rights controversy. The same point can be made with respect to the 143

144 145

See First Periodic Report of South Africa to the African Commission (on file with the author) at 19. See Proceedings of the National Assembly, 19 April 2000 (on file with the author) at 1. Ibid.

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notice of motion on the same controversy given to the NASS one day earlier by Dr. B. L. Geldenhuys of the New National Party.146 In this speech, he called on President Mugabe to honour article 3 of the African Charter (on the equal protection of the law) and called on the South African government to honour its obligations under article 47 of the Charter and lodge a written compliant with Zimbabwe on the extant controversy.147 Similarly, the African Charter has been utilized in several parliamentary speeches by gender activist MPs to reinforce their gender equality arguments. In a speech in the NASS on the promotion of gender equality, the deputy speaker of that chamber argued that South Africa’s ratification of the African Charter’s Women’s Protocol further demonstrates the existence and appropriateness of the strong commitment of the African National Congress (ANC) government to the improvement of the status of women as a fundamental tenet of the South African Constitution.148 The deputy speaker also invoked President Mbeki’s statement on that Protocol to make a similar point.149 In a speech in the National Council of the Provinces (NCOP), another chamber of Parliament, during that body’s consideration of a report of the Joint Monitoring Committee on the Improvement of the Quality of Life and the Status of Women, Ms. M. P. Themba cited the fact of the adoption of the Women’s Protocol by the African Union (AU) and South Africa’s ratification of that document to reinforce her argument that both the AU and South Africa ‘‘fully endorse the right of women to be included in peace processes.’’150 In a more recent speech in the NCOP, the then Minister in the Presidency, Mr. Essop Pahad (who was also an MP), cited the adoption of the African Charter’s Women’s Protocol as part of the growing evidence of South African and AU commitment to improving the status of women.151 In the same vein, in a speech in the NASS celebrating the growing empowerment of South African and other African women and seeking the greater acknowledgement of their contributions to society, the then deputy Minister of Health (who was also 146 147 148

149 150

151

See Proceedings of the National Assembly, 18 April 2000 (on file with the author) at 3. Ibid. See Proceedings of the National Assembly, 17 August 2004 (on file with the author) at 15–16. Ibid. at 20. See Proceedings of the National Council of the Provinces, 25 February 2004 (on file with the author) at 3. See Proceedings of the National Assembly, 9 March 2005 (on file with the author) at 7.

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an MP) referred to the adoption of the Women’s Protocol as a development that highlighted the importance of the empowerment of women.152 One year earlier, Democratic Alliance MP Ms. J. A. Semple had copiously cited and referred to the Charter in support of her arguments urging more action by the government toward the elimination of gender inequality. In her own words: The Democratic Alliance supports the objectives of the African Charter in its efforts to ensure that every woman shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the African Charter . . . and the present [Women’s] Protocol, without distinction of any kind.153

Two years earlier, Ms. B. N. Sono had deployed the Charter in a speech to the NASS and had referred to it in a way that suggested that it was the standard against which the status of women in South Africa and the rest of the African continent would be measured.154 In all these cases, these gender-sensitive MPs acted as activist forces that facilitated the influence that the Charter had on the character of the parliamentary debate that occurred. The emphasis here is on the debate itself and not on its outcome as such. In the same vein, the African Charter has also been relied on by some MPs in order to ground and bolster their arguments for special protections for the rights of the Afrikaner numerical minority in South Africa. For instance, in a speech in the NASS on the occasion of the anniversary of Nelson Mandela’s release from prison, General Viljoen of the Freedom Front argued that ‘‘we must stop homogenising South Africa. We must accept minority rights as a fundamental freedom . . . We must honour the accord of Afrikaner self-determination to which Mr. Mandela agreed . . . We must honour the African Charter on Human and Peoples’ Rights.’’155 In a speech in the NASS on the key challenges facing the African Union and related matters, Dr. B. L. Geldenhuys relied quite heavily on the African Charter’s guarantee of minority rights and argued that ‘‘disregard for minority rights continues to be one of the most common sources of conflict in Africa. Africa must stop paying lip service

152 153 154 155

See Proceedings of the National Assembly, 1 September 2004 (on file with the author) at 2. See Proceedings of the National Assembly, 6 March 2003 (on file with the author) at 1. See Proceedings of the National Assembly, 8 March 2002 (on file with the author) at 1. See Proceedings of the National Council of the Provinces, 22 February 2000 (on file with the author) at 14.

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to the content of their own bible, the African Charter . . . and start implementing the provisions thereof in practice.’’156 As interestingly, in her contribution to the parliamentary debate in the NCOP on the occasion of the international day of families, Ms. E. N. Lubidla extensively refers to and reproduces the text of article 18 of the African Charter (on the protection of the family, the elimination of discrimination against women, and special protections for the aged and the disabled). This provision was cited in order to make and reinforce her argument about the need for more help for troubled families taking into account the direct contributions of Apartheid to the destruction of family life in South Africa.157 As importantly, the African Charter was invoked by at least two MPs in their speeches in the NASS on the occasion of ‘‘Africa Unity Day.’’ In the first case, Mr. M. Ramgobin argued that the greatest obstacles to inter- and intra-African cooperation today were the problems of political instability and insecurity, and that ‘‘in their own ways, the adoption . . . of the African Charter . . . and the decision at the Algiers summit in 1999 on unconstitutional changes of government were a recognition’’ of this fact.158 In his own contribution, Dr. Geldenhuys sought to justify his argument that Africa should ‘‘start accepting responsibility for its own future,’’ by declaring that the ‘‘African Charter . . . is the only document of its kind that balances the enjoyment of rights with performances of duty.’’159 Regardless of one’s view on the ideological direction of these two arguments, the important point here is that the two speeches both invoked the African Charter in ways that made a significant impact on the nature of the legislative debate in the NASS. Lastly, it must be noted that even in the legislative debates in both the NASS and the NCOP regarding the possible ratification by South Africa of the Protocol for the Establishment of the African Court on Human and Peoples’ Rights, the relevant committees of both chambers of Parliament invoked the African Charter to justify their argument that Parliament should approve the ratification of the Protocol. Indeed, both the Select Committee on Security and Constitutional Affairs of the NCOP and the Portfolio Committee on Justice and Constitutional 156 157

158 159

See Proceedings of the National Assembly, 10 September 2003 (on file with the author) at 2. See Proceedings of the National Council of the Provinces, 15 May 2001 (on file with the author) at 7–8. See Proceedings of the National Assembly, 25 May 2000 (on file with the author) at 13. Ibid. at 4.

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Development of the NASS recommended the approval of the ratification partly on the basis of their argument that since article 50 of the African Charter (and not the Protocol itself) requires the prior exhaustion of local remedies before a petition can be dealt with by the African Commission, the African system and the South African constitutional order are ‘‘complementary’’ and ‘‘mutually reinforcing of each other.’’160 Thus, on the whole, it is fair to say that the African system has exerted some influence on legislative debate and action within South Africa. This influence was in almost all cases facilitated by the activist MPs who invoked the Charter in their parliamentary speeches, the activist judges who invoked the Charter in the decisions that led to corresponding legislative changes, and by CSAs (such as HURISA) which created the enabling environment for such influence by working in a general way to popularize the awareness and use of the Charter within South Africa. More will be said on HURISA’s work in this direction in the next section.

5.5 Impact on the work of civil society actors The African system has had a significant, if uneven, impact on the work of the civil society actors which operate within South Africa. Although, as will soon become clear, the African system has not yet become a routinely utilized resource among these CSAs, the objective of this section is to discuss the available evidence regarding the extent of the impact that this system has had on the work of these actors. The fact that several local South African CSAs now have observer status at the African Commission and, to a significant extent, do participate actively in its work, is a good indication of the influence that has been exerted on the domestic work of these CSAs by the African system.161 As at February 2006, there were ten or so South African CSAs 160

161

See Proceedings of the National Council of the Provinces, 26 June 2002 (on file with the author) at 2–3; and Proceedings of the National Assembly, 24 June 2002 (on file with the author) at 1–2. See Initial Report of South Africa to the African Commission, 1998 (on file with the author) at 104. See also List of Organizations Granted Observer Status with the African Commission (June 2003) (on file with the author); Directory of NGOs with Observer Status at the African Commission, 2004, available at www.achpr.org/english/info/ directory_ngo_en.html; Status of Submission of NGO Activist Reports, October 2005 (on file with the author); and Final Communique´ of the 38th Ordinary Session of the African Commission, Banjul, The Gambia, 21 November–5 December 2005, available at www.achpr.org/english/communiques/communique38_en.htm at 2.

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who had observer status at the African Commission. Impressively, some of those CSAs (such as Lawyers for Human Rights (1992), the Centre for Human Rights of the University of Pretoria (1993), and the Centre for Applied Legal Studies (1994)) had obtained this status even before South Africa signed the African Charter in 1995 and ratified it in 1996.162 HURISA, which has played one of the most active roles in popularizing the African Charter within South Africa, obtained this status in 2001.163 This CSA is gaining recognition for its increasingly effective efforts in encouraging its peers to apply for observer status at the African Commission.164 In part as a result of the efforts of HURISA, the Community Law Centre – a well known CSA – obtained observer status more recently in late 2005.165 To obtain observer status at the Commission CSAs have to apply, be accepted, and agree to participate actively in the operations of the African Commission. Thus, these South African CSAs freely chose to seek and obtain such observer status and to take upon them the obligation of active participation in the system’s operations. They have also had to devote a certain portion of their human and material resources to pursuing this status and attending the bi-annual ordinary sessions of the African Commission. Given that these CSAs were under no obligation whatsoever so to do, their choice to seek such status, assume the duty of participation, and devote resources to fulfilling this obligation does to some extent reflect the importance that they attach to the access that this status confers on them and shows that they recognize such access as a useful resource in the advancement of their own central activities as domestic CSAs. It is therefore one important measure of the impact that the African system has had on their work (their internal decision-making, focus, organization, and resource allocation). As importantly, in the Garreth Prince case166 (already discussed in some detail in section 5.2), the Charter did have an appreciable impact on the work of the CSAs that brought the matter first before the courts and later to the African Commission. Here, the Charter served as an important resource which these activists deployed in their (admittedly unsuccessful) search for judicial endorsement of their own conception 162 164

165 166

Directory, supra note 161, at 5 and 9. 163 Ibid. at 8. See HURISA and the African Commission, available at www.hurisa.org.za. See also HURISA Project Report, supra note 110, at 2. See Final Communique´, supra note 161, at 2. (1998) 8 BCLR 976; (1998) SACLR LEXIS 16 (at 31).

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of justice. In arguing in favor of Mr. Prince before at least two of the courts, counsel felt empowered by and relied on article 8 of the African Charter. At the Cape High Court level, the effort made by counsel to bring the African Charter to the attention of this court is acknowledged in the decision of the court itself. According to Friedman JP, Mr. Wim Trengrove (the lead counsel for the applicant) ‘‘referred in this regard to . . . article 8 of the African Charter on Human and Peoples’ Rights to which South Africa is a party.’’167 The key point in this particular respect is simply that the Charter strengthened counsel’s formulation of the arguments that he made to the Cape High Court, and not that the Charter necessarily influenced this particular court’s reasoning process. Thus, the Charter could not but have also weighed significantly in the calculations made by the other CSAs behind this case – including the Legal Resources Centre and Mr. Gareth Prince himself (a noted Rastafarian activist). Indeed, Mr. Prince subsequently petitioned the African Commission alleging a breach of his African Charter rights by South Africa.168 What is more, as has been shown already, at the Constitutional Court level, the Charter was invoked by both sides to strengthen or legitimize their respective legal logics. Mr. J. L. Abel, the counsel for Mr. Prince, deployed article 8 of the Charter to strengthen his argument that Mr. Prince had a right to practice his religion freely through consuming cannabis in the religiously prescribed manner.169 The fifth respondent invoked the limitations clause contained in the very same article of the Charter as a way of justifying the restriction on the appellant’s right to freedom of religion as appropriate and lawful.170 Thus, for both counsel in this case, one of whom acted for a CSA, the Charter served as an important resource. As has already been discussed, in the Kaunda case, the Society for the Abolition of the Death Penalty in South Africa and their counsel (both CSAs) invoked the Charter in a way that strengthened and justified their arguments before the court.171 These activist forces made ends-means calculations which (though they did not succeed in securing in full measure the judicial orders that they wanted) paid off quite substantially 167 168

169 170 171

Ibid. See Garreth Anver Prince v. South Africa, Communication 255/2002, decided at the Thirty-eighth Ordinary Session of the African Commission, Banjul, The Gambia, 21 November–5 December 2005 (on file with the author). See Appellant’s Heads of Argument, supra note 101, at 50. See Fifth Respondent’s Heads of Argument, supra note 101, at 55. See supra note 22.

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in this case. The calculations that they made were regarding the creative ways in which the deployment of the Charter could reinforce their own capacity to convince the court of the validity of their own arguments as amicus curiae in this case. In the end, all the judges relied to varying degrees on the Charter arguments that were advanced by these activists in order to interpret the South African Constitution as obliging the executive branch to properly consider and respond to the demands by citizens for diplomatic protection of their fundamental human rights while being held in the custody of other states. Clearly, this was a very substantial part of the objectives they sought to achieve by appearing as amicus curiae in this case. In the Islamic Unity Convention case, the Charter has also been clearly influential on the work of two civil society actors, the Islamic Unity Convention and the South African Jewish Board of Deputies. Each body referred to and relied on the Charter in the briefs that they filed in this case. The brief filed by the latter body invoked and reproduced in full article 28 of the Charter (on respect for other human beings) in order to strengthen its arguments to the court about the need to outlaw what it saw as hate speech.172 The former group used the Charter in a more minor way in a footnote in its own brief.173 In the Fourie case, although the court itself did not utilize the African Charter in any significant way, two of the three CSAs which appeared and addressed the Constitutional Court in an amicus curiae capacity invoked the African Charter as a justificatory resource. While the brief of the first amicus curiae, Doctors for Life International, did not make any noteworthy reference to the Charter, the briefs filed by Mr. John Jackson Smyth (the second amicus curiae) and by the Marriage Alliance of South Africa (the third amicus curiae) did invoke the Charter in a substantial way.174 As interestingly, a group of ten South African CSAs invoked the African Charter in articulating the arguments and recommendations made in their joint submission to the South African Truth and 172

173

174

See Fourth Respondent’s Heads of Argument, available at www.constitutionalcourt. org.za/Archimages/655.PDF at 55. See Applicant’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/656.PDF at 33 and n. 69. See First Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt. org.za/Archimages/5244.PDF; Second Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt.org.za/Archimages/5243.PDF at 19; and Third Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/5265.PDF at 36.

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Reconciliation Commission.175 In arguing that ‘‘the Commission must under its mandate provide recommendations for preventing violations of all human rights,’’ and that ‘‘human rights include economic, social, and cultural [ESC] rights,’’ this group of CSAs pointed out for justification the fact of the inclusion of ESC rights in the African Charter and in other such documents.176 In arguing that the Commission must consider the effect of the violations of particular civil and political rights on the enjoyment of certain key ESC rights, these CSAs invoked the obligations assumed by South Africa under the Charter and described that instrument as ‘‘the authoritative statement of what constitutes human rights at the African regional level.’’177 In illustrating to the Truth and Reconciliation Commission the ways in which it could integrate ESC rights into its work, these CSAs sought to strengthen their arguments by invoking the particular formulations of the rights to education and to adequate healthcare that are guaranteed in the Charter.178 Another indicator of the influence that the African system has had on the work of South African CSAs is the fact that in the period leading up to the submission in late 2005 of South Africa’s first periodic report to the African Commission and even during the African Commission’s Thirty-eighth Session where the report was considered, a group of local CSAs179 sought to deploy the fact that the African Commission had, in its decision in ‘‘the Ogoni case,’’180 read the right to housing into the Charter in order to pressure the South African government to include in that report a discussion of ‘‘ the extent to which the right of access to adequate housing has been realized’’ within South Africa.181 This attempt by a HURISA-led NGO team to get the South African government 175

176 179

180

181

See Community Law Centre et al., Submission to the Truth and Reconciliation Commission concerning the Relevance of Economic, Social and Cultural Rights to the Commission’s Mandate (18 March 1997), available at www.doj.gov.za/trc/submit/ esc6.htm. Ibid. at 4 (emphasis in the original). 177 Ibid. at 6. 178 Ibid. at 11 and 13. This group included HURISA, the Centre for Human Rights of the University of Pretoria, the Community Law Centre, and Lawyers for Human Rights. See Social and Economic Rights Action Centre and another v. Nigeria, Communication 155/96, available at www1.umn.edu/human rts/africa/comcases/155-96b.html. See the Shadow Report to South Africa’s First Periodic State Report to the African Commission on Human and Peoples’ Rights (November/December 2005) (on file with the author ) at 4 (providing evidence of the actual argument put forward by these CSAs in order to put pressure on the government); and the HURISA Project Report on the 37th Session of the African Commission, 7 November 2005 (on file with the author) at 2–3 (where evidence was provided of the interaction between representatives of the Presidency and the Department of Foreign Affairs on the question of NGO input into

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to include a particular discussion in its report is one way in which these CSAs have utilized the norms of the African system in their domestic struggle to influence their government’s decisions. It is also a form of activist-brokered communication between the African Commission and the executive in South Africa that lends credence to the argument that more attention needs to be paid to the other ways, beyond the view of the compliance radar, in which the norms of IHIs such as the African system percolate into, and are usefully deployed within, the domestic sphere. The work of some individual South African NGO-type CSAs has, to varying degrees, been impacted by the African system. A review of the available evidence in relation to a number of these CSAs suffices to illustrate this point. As may have already become clear, HURISA can on many grounds now lay one of the most credible claims to the title of the most devoted and effective civil society-based intelligent transmitter and disperser of the African system’s normative energy within South Africa. Certainly, it is now one of the major drivers of the growing trend toward awareness and use of the African system within South Africa. For one, they have made strenuous efforts over the last few years to educate other CSAs and government departments on the relevance of the African system to their own work within South Africa and have in the process encouraged the domestic utilization of the African system by such groups.182 HURISA’s activities in this respect are noted on its website and were confirmed by participant observation.183 It is thus correct to say that: HURISA conducts training workshops on the African system for the Protection and Promotion of Human Rights for representatives of NGOs and Community based organizations from across the country, as well as governmental departments and institutions. Participants use the knowledge they gained in their own work and promote the African system in their respective provinces.184

Secondly, HURISA organizes preparatory meetings for South African CSAs which are interested in engaging with the African system.185 These

182

183

the first periodic report and of the government’s concession that it will make a later draft of the report available to NGOs for comment). See HURISA and the African Commission, available at www.hurisa.org.za. See also S. O. Benneth, Report on Participant-Observations at two Seminars organised by HURISA for other South African CSAs on the relevance of the African System (29 November 2005) (on file with the author). Ibid. 184 Ibid. 185 Ibid. See also HURISA Project Report, supra note 110, at 3.

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meetings also serve an educational function in that presentations are made and discussions conducted regarding the latest developments with regard to the system and some of the relevant government officials are offered an opportunity to engage closely with the attending CSAs.186 Thirdly, HURISA provides financial support to several of its peers so as to enable them to attend both the Commission’s sessions and the NGO forum that precedes them; often leads the resulting South African NGO delegations; and holds so-called report-back meetings in South Africa after each such session in order to brief a larger group of CSAs and government officials who did not have a chance to attend the session.187 For example, between July 2002 and May 2005, it provided the financial aid that enabled nine representatives of South African CSAs to attend sessions of the African Commission.188 Lastly, as has already been discussed, HURISA was a key player in the drafting and presentation of the Shadow Report presented by some South African CSAs to the African Commission in late 2005. Thus, HURISA has played an important role in facilitating the domestic percolation of the African system within South Africa. In so doing, the African system has in turn influenced its own internal operations (decisions to allocate time, expend financial resources, deploy staff, and so on). Although the record of the Community Law Centre (CLC), another South African CSA, is more modest in this regard, it now enjoys observer status at the African Commission and has, to a significant extent, utilized the Charter in its work within South Africa. This point is easily illustrated. For example, the CLC extensively referred to and invoked the African Charter in the brief it filed as second amicus curiae in the Treatment Action case.189 The CLC’s submissions in this case, made on their behalf by the well-known human rights counsel Mr. Wim Trengrove, made significant use of the Charter.190 Although seven other international human rights instruments are also cited and discussed in this brief, this does not detract from the significance of the invocation of the Charter by the CLC in this case.191 Also noteworthy here is the fact that some of their staff have displayed a keen awareness

186 189

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191

Ibid. 187 See HURISA Project Report, supra note 110, at 1–2. 188 Ibid. at 2–3. See Minister of Health and others v. Treatment Action Campaign and others (2002) 10 BCLR 1033 (Constitutional Court). See the Submissions of CLC and IDASA, available at www.communitylawcentre.org.za/ ser/docs_2002/TAC_MTCT_Case_Heads_of_Arguments.doc at 37. Ibid. at 35–43.

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of developments with respect to the African system. For instance, a researcher in the CLC’s socio-economic rights project has written a very informative, incisive, and well-argued short piece on the emerging socio-economic (ESC) rights jurisprudence of the African system.192 Similarly, one of the CLC’s senior researchers has written at least one article on the African Commission’s work.193 As instructively, some of the CLC’s annual reports of its activities, most of which are published on its website, makes significant reference to the CLC’s engagement with the African system. For example, its 2004 Annual Report not only invokes the Charter in its main text but also refers in its bibliography to an article written by one of its staff that discusses the relevance of the Charter.194 In the same vein, its 2002 Annual Report makes three somewhat minor but still noteworthy references to the African Charter in the section in which a report on the activities of its staff during the relevant year are reported.195 Even though the evidence of the utilization of the African system is even sparser in relation to the activities of the Legal Resources Centre (LRC), one of the most established and respected of the multitude of CSAs that operate in South Africa, the fact remains that it has utilized the Charter to some extent, however limited. For example, in two of the academic publications that are published on its website and which are intended to convey a sense of its program and activities, the African Charter is referred to in significant ways. In the first publication, the LRC’s Women’s Rights Project reported on the outcome of its 2001 workshop on the rights of women in Southern Africa under customary law. Although much of the focus of that report was on another international instrument, extensive references were made in the project report to the African Charter.196 Indeed, pride of place was accorded

192

193

194

195

196

See C. Mbazira, The Right to Health and the Nature of Socio-Economic Rights Obligations under the African Charter: The Purohit Case, available at www.communitylawcentre. org.za/ser/esr2005/2005nov_charter.php. See S. Khoza, ‘‘Promoting the Realisation of Economic, Social and Cultural Rights: The African Commission holds a Seminar in Pretoria’’ (2004) 4 African Human Rights Law Journal 334. See CLC, Annual Report, 2004, available at www.communitylawcentre.org.za/ docs_2005/Comm%20Law%20Annual%20Report.pdf at 6 and 20. See CLC, Annual Report, 2002, available at www.communitylawcentre.org.za/ dcocentre/CLC%20Annual%20report%202002.doc. See LRC, An Overview of Women’s Rights in African Customary Law, available at www.lrc.org.za/Publications/AcademicPapers.asp at 1, 4, 8–9, 11, and 40.

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in that document to the Charter. Articles 2, 3, and 18 of the Charter were reproduced in large measure and article 55 of that same instrument was discussed in a significant way.197 In the second publication, a participant in a summer school with which the LRC was associated in some way made an important reference in his presentation to the African Charter.198 The publication of this paper on the LRC’s website is a contribution to the effort to disseminate knowledge about the relevance of the African system within and even beyond South Africa. It also reflects the African system’s influence on the internal deliberations, decision-making, and action of the LRC. Thus, it is fair to state that the LRC is not unaware of the relevance of the African system to its activities, and has on some occasions made appreciable, if sparse, use of that document in its work. The exact same point can be made in relation to the work of the South African NGO Coalition (SANGOCO). For instance, one of the hearing/ briefing papers on various rights-related issues which are published on this CSA’s website invokes the African Charter, among a number of other such instruments, in order to reinforce and further legitimize its argument that any welfare policy formulated by the government must be valid within the framework provided by the right of access to social security that is contained in the South African Constitution.199 Article 18(4) of the African Charter was cited in that document as a normative resource that ought to be utilized within South Africa to interpret the relevant constitutional provision.200 In sum, it is only reasonable to conclude that the African system has had an appreciable, if strikingly limited, impact on the work of South African CSAs. While evidence of such impact exists, it does not abound. While these CSAs have sometimes invoked the Charter, most have not done so frequently enough. HURISA seems to stand out in some ways as the CSA in respect of which the Charter has had the most impact.

197 198

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200

Ibid. See V. Saldanha, Presentation on the Objects of the SADC Lawyer’s Association and Lawyer Mobility in the SADC Region (3 November 2001), available at www.lrc.org.za/ Publications/AcademicPapers.asp at 11. See Poverty and Inequality Hearings: Social Security Theme, Background Paper (28 April 1998), available at www.communitylawcentre.org.za/ser/docs_2002/ Socsecbgr_excluding_COSATU_ref.doc at 20. Ibid.

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5.6 Assessing the overall impact of the African system within South Africa The extent of the impact that the African system has had within South Africa cannot be fully or adequately appreciated without a sufficient recognition of the difficult circumstances in which that system has been forced to function for almost all of its history. Paucity of funding, insufficient numbers of staff, and the like have negatively affected the African Commission’s efforts to self-publicize, as well as popularize the use of the African Charter within states. What is more, throughout the three centuries or so before 27 April 1994, the socio-political and legal environment in South Africa itself was extremely harsh.201 As was argued in chapter 4, it is all too easy for an IHI to exert influence within a state when the relevant domestic regime does not offer much resistance to the IHI, or is for the most part already ideologically in line with the goals and views of that international body. This has not, for the most part, been the lot of the African system. In any case, South Africa only ratified the African Charter in 1996 and did not really begin to participate fully in the African system until some time thereafter. Regarding the impact that the African system has had on judicial reasoning and action within South Africa, both positive and negative trends are observable.202 On the positive side, the African Charter has contributed, in varying measure, to the articulation of the legal reasoning (and thus to the outcome) in at least twenty judicial decisions in South Africa. These decisions were rendered by judicial bodies that ranged in rank from administrative tribunals to the Constitutional Court. As remarkably, it has been cited and/or discussed in detail in at least twelve of the decisions that have been rendered by the Constitutional Court, South Africa’s apex judicial body.203 As encouraging is the fact that there is a growing trend within that court, at least in 201 202

203

See Initial Report of South Africa to the African Commission, supra note 139, at 10–11. The author is grateful to Solomon Ukhuegbe for his assistance with an incisive analysis of the performance of the Constitutional Court in terms of its engagement with the African Charter. See S. Ukhuegbe, Memo No. 2 (4 February 2006) (on file with the author). Since the central objective of this book is not really to quantify the extent to which the courts (and other domestic institutions) have utilized the African system, but to theorize on the importance of the significant usage of the system within states, any indication of such appreciable usage is in itself sufficient for the book’s purposes. Nevertheless, the quantitative analysis in this section of the extent to which the Charter has been so deployed is necessary only because in the South African judicial context that instrument has not usually been invoked in a profound (as opposed to a merely

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respect of some of its judges, to refer to and take seriously the norms of the African system. Quantitatively, the trend toward reliance in part on the Charter grew somewhat steeply from 1999, dropped slightly around 2002, and grew again to its previous apex in 2004/05.204 On the negative side, it is important to note that although the caseload of the South African Constitutional Court has been, relatively speaking, light and perhaps ‘‘almost leisurely,’’205 it had decided over 251 cases by October 2005.206 Yet only twelve or so of those judgments cite the African Charter in any significant way.207 This is less than 5 percent of the output of the court during the relevant ten-year period. Given the constitutionally-imposed mandate on this court to apply international human rights instruments like the African Charter in its decisionmaking, and the fact that human rights cases are its main staple,208 the court’s record of applying the Charter is clearly far from optimal. In the end, though, it is clear that on the whole the South African courts have indeed made significant use of the Charter. This is clear from the analysis in section 5.2. With respect to the overall impact that the African system has had on executive deliberation and action within South Africa, both negative and positive trends are discernible. On the negative side of the calculus, it is important to note that even government human rights institutions have failed to cite or refer to the Charter in many of the briefs that they have filed before the courts. For example, in the Baloyi case, the brief filed by the CGE did not mention the African Charter at all.209 Again, there is

204

205 206

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significant) way. Only in a few cases has the Charter been deployed in a noticeably profound manner. In too many of these cases, the Charter appeared in a footnote, or was cited alongside a number of other such instruments, or did not play a huge role in the articulation of the extant judicial reasoning. Thus, statistical analysis was undertaken here as way of discovering if there is quantitative strength where qualitative use is noticeably limited. Where the domestic judicial use of the African system has been highly profound, as in Nigeria, there was no need for this kind of additional quantitative analysis. Ukhuegbe, supra note 202, at 1. This conclusion is based on a modification and updating of Ukhuegbe’s statistical analysis. Ibid. See Judgments of the Constitutional Court of South Africa, Case List, October 2005, available at www.constitutionalcourt.org.za at 1–59. Excluded from this number are a few references in the court’s decisions to the African Child Rights Treaty, a document that creates a separate regime, and which is beyond the defined scope of this book. See Ukhuegbe, supra note 202, at 1. See Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt.org.za/ Archimages/2629.PDF at 26–29.

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no evidence in any of its documents published on the court’s or CGE’s website that it made any noteworthy use of the Charter in the first of the consolidated matters in the Bhe case.210 In the third of the consolidated matters heard by the Constitutional Court in the Bhe case, the SAHRC’s brief failed to refer to the Charter in any appreciable way.211 Similarly, these institutions often fail to invoke the Charter in their own work. At times, they have acted in this way even while relying on United Nations human rights documents. For example, a ‘‘Call for Comments’’ that was issued by the DOJ in 2004 inviting public discussion on the Draft Prohibition of Hate Speech Bill of 2004 referred to two United Nations treaties but failed to refer to the African Charter in any noteworthy way.212 Similarly, although they sometimes refer to UN treaties, none of the submissions of the CGE to either Parliament or a government ministry that are featured on its website refers to the African Charter in any significant way.213 Similarly, one was hard put to find a SALC document that even as much as mentions the Charter. Although at least two of this body’s documents do refer to the Charter, this treaty does not appear in any of the annual reports issued by the SALC between 1999 and 2001.214 On the positive side, the Charter has been deployed in a speech by the President of South Africa; was cited in the government’s gender policy and in its millennium statement; played an appreciable role in the program operations of the DOJ; helped shape the content of certain of the Bills drafted and submitted by the executive to Parliament; was deployed by the government in some of the submissions that it made to the courts; and featured to some extent in the work of the SAHRC, the CGE, and the SALC. Thus, it is fair to conclude that, on the whole, the African system has exerted a limited 210

211

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214

For example, see CGE’s Statement on the Bhe Case, available at www.cge.org.za/ userfiles/documents/cgeobhecase.pdf. See Applicants’ Heads of Argument (SAHRC case), available at www.constitutionalcourt. org.za/Archimages/2226.PDF. See Draft Prohibition of Hate Speech Bill, 2004, Call for Comments, available at www.doj.gov.za/2004dojsite/legislation/bills/2004_hatespeech.pdf. For example, see CGE, Submission to the Home Affairs Committee of the National Assembly on the Communal Lands Bill (10 November 2003), available at www.cge.org.za at 7–8. This Bill makes reference to three international human rights instruments but does not mention the African Charter. See also CGE, Submission to the Health Portfolio Committee of the National Assembly on the National Health Bill (19 August 2003), available at www.cge.org.za. This document does not cite the African Charter. This conclusion was accurate as at February 2006. For these reports, see www.law.wits.ac.za/salc/annrep.html. The 2001 Report was the latest published report that was accessible to the author.

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though still appreciable degree of influence on executive deliberation and action within South Africa. In terms of the overall impact of the African system on legislative debate and action, most of the readily measurable impact that the system has exerted in this respect has been on legislative debate. Section 5.4 speaks for itself but suffice it to note here, on the positive side, that the Charter has had an appreciable impact on important pro-human rights changes that have been made to certain pieces of legislation in South Africa; and has been relied upon by some MPs to strengthen their arguments. In the negative column must register the fact that, in most cases, the African Charter was at times relied on as one item in a menu of treaties that helped shape the legislative changes mentioned above. Another observable negative trend is that most South African CSAs have not tended to reference the Charter in the articulation of their arguments about the appropriateness or otherwise of proposed legislative action. With regard to the question of the extent of the overall impact of the African system on the work of CSAs within South Africa, the examination of several discrete aspects of this question is necessary to ground an accurate assessment. For one, despite the appreciable and growing impact that the African system has had on the work of CSAs, the fact that the Gareth Prince case (brought before the African Commission in 2002 and decided in 2005) was the very first decided case in which South African civil society actors brought a matter to the African Commission is one important indicator of the generally low level of awareness and utilization of the African system among South African CSAs. Given that these actors have tended to feature among the ranks of the major drivers of the transjudicial communication that has sometimes occurred between the African system and domestic institutions, this statistic is quite indicative. Similarly, the failure of so many CSAs to deploy the African Charter in certain of the key domestic cases in which some of the relevant judges ended up invoking the Charter is a useful proxy for the low utilization of that treaty among South African civil society actors. A few examples serve to illustrate this point. As has been discussed already, in the Bhe case, none of the several briefs filed in the case by CSAs utilized the African Charter in any appreciable way.215 A similar story was played 215

See, e.g., Applicants’ Submissions (Bhe), available at www.constitutionalcourt.org. za/Archimages/1438.PDF; Plaintiff’s Submissions (Shibi), available at www.constitutional court.org.za/Archimages/2251.PDF; and Applicants’ Heads of Argument (SAHRC case), available at www.constitutionalcourt.org.za/Archimages/2226.PDF.

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out in the Volks No case.216 Just as regrettably, there is no evidence that, in the Laugh it Off Promotions case, the Freedom of Expression Institute referred to the Charter in its brief to the court. In the Fourie case, Doctors for Life International, the first amicus curiae in the case, did not invoke the Charter in any significant way.217 Another such indicator is the relative under-representation of South African CSAs among the ranks of the CSAs that have been granted observer status by the African Commission. Most South African CSAs do not enjoy such status at the Commission. In fact, as at March 2006, only eleven or so of them enjoyed this status.218 What is more, nearly half of this number obtained this access to the African system between 2001 and 2005.219 Given the long history of CSA activism in South Africa, the very large number of eligible South African CSAs, and South Africa’s leading role within the African Union, the fact that so few South African CSAs enjoy this kind of access to and close engagement with the African system is surely an indication of either a widespread lack of awareness of the relevance of the African system among these CSAs, or an indication of their relative unwillingness to utilize the system in much greater measure, or both. Similarly, there is a striking paucity of substantial references to the African system in the annual reports, activity reports, submissions, papers, and website publications of many key South African CSAs. For example, although the 2002 and 2004 annual reports of the Community Legal Centre make minor references to the African system, the 1999, 2000, and 2001 reports do not make any significant references to this system.220 Along the same lines, although it makes copious references to some other international instruments, the CLC’s joint submission with another body on the criminalization of torture omits a reference to the African Charter.221 In the same vein, while the African system has had some impact on the work of the Legal Resources Centre within South Africa, it has so far not exerted a considerable level of influence on that 216

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218 219 221

See, e.g., Respondents’ Heads of Argument, available at www.constitutionalcourt.org. za/Archimages/3295.PDF; and Amicus Curiae’s Heads of Argument, available at www. constitutionalcourt.org.za/Archimages/3296.PDF. See First Amicus Curiae’s Heads of Argument, available at www.constitutionalcourt. org.za/Archimages/5244.PDF. See Directory and Final Communique´, supra note 161. Ibid. 220 See www.communitylawcentre.org.za. See NICRO and CLC, Submission to the Department of Justice on the Draft Criminalization of Torture Bill (17 May 2004) (on file with the author).

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organization. For example, a sustained search of its website (one of the principal sources of its own records of its activities and attainments) revealed only about three references to the African system.222 None of the six annual reports issued by the LRC between 1999–2004 refers to the African system in any noteworthy way,223 and only two of the seven academic papers posted on its website as at 4 February 2006 refer in any appreciable way to the African system.224 The story with respect to other notable South African CSAs is not much different. For example, not even one of the ten or so litigation briefs filed by the Women’s Legal Centre in the Constitutional Court and published on their website utilizes the African Charter in any significant way.225 As importantly, despite extensive references to UN documents, there is little explicit mention of the African Charter in the advocacy submissions made by this group to legislative committees, executive departments, and other such institutions.226 In the same vein, only one of the eight hearing/ briefing papers published on the website of the South African NGO Coalition (SANGOCO) as at 4 February 2006 makes any noteworthy reference to the African system,227 and none of this group’s media workshop reports or presentations mentioned the African Charter.228 As disappointing is the fact that there is little indication in the publicly available record that the Freedom of Expression Institute, a noted South African CSA, has utilized the African system in its work within South Africa. None of the reports published on its website as at 4 February 2006 cites or refers to the African Charter in any noteworthy way, and repeated general searches of its website on the same date and subsequently, did not disclose even one such reference.229 Although the proxies used in the foregoing paragraphs for analyzing the extent of utilization of the African system by South African CSAs do not, of course, offer a complete picture of the impact that the system has 222 225

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227 228

See the LRC’s website, www.lrc.org.za/home. 223 Ibid. 224 Ibid. For instance, see Applicants’ Heads of Argument (in South African Human Rights Commission case, one of the matters consolidated with the Bhe case), available at www.wlce.co.za/litigation/cl_lit_sahrc_heads.php. The same point applies to the submissions made on behalf of the applicant in the Bhe case itself by Wim Trengrove, who was instructed by the WLC. See Applicants’ Submissions, available at www.wlce.co.za/ litigation/cl_lit_bhe_submissions.php. For instance, see WLC et al., Joint Submission on the Promotion of Equality and Prevention of Discrimination (23 November 1999), available at www.wlce.co.za/ advocacy/submission1.php. See SANGOCO’s website, www.sangoco.org.za. Ibid. 229 See the FEI’s website, www.fxi.org.za.

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had on the work of these actors, when read alongside other evidence (such as the failure of the many of these actors and the counsel who they have instructed to cite the African Charter in many of the human rights cases in which they have participated), these proxies do create a reasonably accurate outline that reveals the relatively low (though growing) level of the deployment of the African system among South African CSAs. What is more, this picture of relatively low impact is reinforced by participant-observation research and by the comments of a senior HURISA activist who has been very active in the effort to educate South African CSAs about the relevance of the Charter to their work and thus to get them to increase their utilization of the African system in their own activities.230 However, on the positive side, it is clear from the analysis in sections 5.2 and 5.5 that the African Charter has had appreciable, if varying, degrees of impact on the work of certain South African civil society actors. HURISA is, of course, at the top of the list of the CSAs which have positively engaged with the African system, but other CSAs have also been impacted by the African Charter. As has already been shown, the Charter was invoked by CSAs in the Kaunda, Islamic Unity Convention, and Fourie cases, and was also deployed by a group of ten CSAs in a submission to the Truth and Reconciliation Commission. Thus, on the whole, the available evidence does indicate that the African system – especially the African Charter – has had significant but limited impact on the work of CSAs within South Africa. Nevertheless, it is clear even from the available evidence that the African system has had strikingly less impact on the work of the CSAs that operate within South Africa than it has had on the work of similar actors in Nigeria. The incidence of the creative deployment of the system within South Africa by CSAs is still significantly infrequent. These actors have simply not utilized the system in nearly as much measure as their Nigerian counterparts. However, given the objectives of this book, the very fact that the system has had an appreciable degree of impact on some of these CSAs is noteworthy. And the fact that the impact that this system has had on these CSAs has almost entirely occurred outside the comprehension of the compliance paradigm is an even more remarkable development. 230

The participant-observation research was conducted on several occasions in late 2005 by Simon Okolo Benneth. The unstructured interview with the senior activist was conducted by this same researcher in October 2005.

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On another note, a more qualitative point that must be taken into consideration in assessing the overall impact of the African system within South Africa is the fact that compared to the African Charter’s civil/political rights (CPR) provisions, its socio-economic (ESC) rights provisions have percolated in much less measure into the reasoning, deliberations, or decision-making of the relevant South African domestic institutions. The skewed pattern of the percolation of the African Charter into judicial reasoning in South Africa is instructive. To the extent that the right of gender equality in succession to property is an ESC right, the Bhe and Volks No cases are probably the only ESC rights cases in which a South African court decision has utilized the African Charter in a significant way. The vast majority of the other cases in which the African Charter has been invoked in court decisions have in the main concerned CPR issues. While not deliberate, there has been much lopsidedness in favour of the CPR provisions of the African Charter in the domestic application of that instrument by the South African courts. The marginalization of ESC rights is also evident in the tendency of South African CSAs to refer to the African Charter much more in relation to CPR cases than in ESC rights matters. Although the Charter was cited by at least one CSA in the Treatment Action case, that treaty was not cited by any of the relevant CSAs in a noteworthy way in any of the other key South African ESC rights cases.231 Another important qualitative point that deserves to be highlighted at this point is that not all of the acts of invocation of the African Charter within the domestic South African context have been progressive, and not every human rights activist will agree with every single one of the arguments in support of which the Charter has been deployed. However, this double-faced quality of the Charter – this susceptibility to invocation in favour of opposing arguments – is not at all peculiar. As the respected human rights theorist Upendra Baxi has correctly pointed out, human rights norms and institutions are far too often capable of at once supporting and advancing the politics of insurrection and the politics of domination.232 The key concern, for the purposes of this book, is the

231

232

See Soobramoney v. Minister of Health, KwaZulu-Natal (1997) 12 BCLR 1696; Government of South Africa and others v. Grootboom and others (2000) 11 BCLR 1169; and (in a sense) Bhe (2005) 1 BCLR 1 (Constitutional Court). See U. Baxi, ‘‘Voices of Suffering and the Future of Human Rights’’ (1998) 8 Transnational Law and Contemporary Problems 125 at 129; and U. Baxi, The Future of Human Rights (Delhi, Oxford University Press, 2002), p. 6.

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significance for IHI theory of the domestic invocation of the African system by activist forces. On the whole, it is clear from the analysis in this chapter that when creatively invoked within the domestic sphere of certain countries, even an IHI (such as the African system) that is generally thought of as weak can sometimes help to produce alterations or other outcomes which make a modest difference to the lives of some of the people that live within those states. And as will be shown more fully in chapter 7, the chief merit of the more holistic optic that is applied in this chapter (which incorporates but reaches well beyond the compliance measure) is that it shows quite clearly that the African system can help produce valuable cases of the kind of correspondence between its norms and domestic governmental or CSA behaviour which is very difficult to detect when using the compliance radar. The key role that was often played by activist forces in the generation of this kind of correspondence is also noteworthy. And although the production of such correspondence within South Africa has so far proceeded at a significantly limited pace, the important point overall is that this process has in fact occurred in appreciable measure, and does have important implications for how we evaluate and imagine IHIs.

5.7 Factors that have facilitated or militated against the African system’s impact within South Africa 5.7.1 Positive factors One of the most important of the many factors that have facilitated the significant impact that the African system has had within South Africa is the dynamic effort to popularize the use of the domestic African system that has been made by some of the activist forces which operate there. Since this point has been made consistently throughout this chapter, it will only briefly be touched upon here. Suffice it to state that without the efforts of these activist forces (especially CSAs such as HURISA which have played a crucial educational role, Ngcobo J of the Constitutional Court, and several MPs) – without the role they played as intelligent transmission-lines that helped to creatively relay the normative energy of the African system into key domestic institutions in South Africa, the African system would definitely not have had the impact that it has so far had within that country (albeit limited). These activist forces sometimes helped generate alterations in the hitherto prevalent logics

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of appropriateness held within the relevant domestic institutions (such as legal/judicial systems, legislative institutions, and executive bodies). As quasi-constructivists have suggested that they do, these activist forces certainly made detailed ends-means calculations and often worked hard to persuade judges (or fellow judges), legislators (or fellow legislators), and government officials to adopt certain textual interpretations and attitudes. This is a process that lends credence to the broadly constructivist theoretical approach to IHIs, and suggests the insufficiency on its own of a compliance-centered optic for assessing and imagining IHIs. It therefore seems reasonable to suggest that, given the growing trend among South African CSAs to seek and obtain observer status at the African Commission and given the increasing tendency of the judges of the Constitutional Court to deploy the Charter (two proxies for assessing the interest that these activist forces have in promoting the African system and for measuring their close engagement with that system), the impact of that system within South Africa is also likely to increase over time. Given the long and distinguished history of civil society activism in South Africa, and its continuing vibrancy, there are strong grounds to believe that this prediction will come to pass.233 The second such positive factor is South Africa’s strong commitment to the development and strengthening of the institutions of the African Union (AU), including the AU’s main human rights system (referred to in this book as the African system). Since the termination of the Apartheid regime in April 1994 and the consequent end of South Africa’s enforced isolation from the rest of the continent, South Africa has participated most actively in and lent strong support to the institutions of the AU, and even hosts the seat of the AU’s Pan-African Parliament.234 It has also participated actively in and strongly supported the work of the African system itself.235 In this vein, it has now ratified virtually all of the human rights instruments relevant to the protection of human rights on the continent.236 Secondly, it has hosted several 233

234

235 236

See T. Maluwa, ‘‘Human Rights and Foreign Policy in Post-Apartheid South Africa’’ in D. P. Forsythe (ed.), Human Rights and Comparative Foreign Policy: Foundations of Peace (Tokyo and New York, United Nations University, 2000). See First Periodic Report, supra note 116, at 133–136; and Proceedings of the National Assembly, 17 August 2004, at 7–8. See HURISA Project Report, supra note 110, at 4. See Initial Report, supra note 139, at 27; Statement of South Africa for the 38th Session of the African Commission at the Occasion of the Presentation of the First Periodic Report on the African Charter on Human and Peoples’ Rights, available at www.doj.gov.za/ 2004dojsite/m_speeches/sp2005/statement%2038th%20session.pdf at 4.

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meetings connected with the various efforts to strengthen the African system.237 It played a central role in the negotiation of the New Partnership for African Development (NEPAD) – a document that seeks to fulfill many of the objectives of the African system.238 It was a major player in the establishment of the new African Court on Human and Peoples’ Rights.239 It has also lobbied successfully for the election of a South African judge to sit on this African Court.240 It has participated in virtually all of the ordinary sessions of the African Commission since its Twentysixth Ordinary Session in 1999.241 To put this statistic in proper perspective, keep in mind that Nigeria, the other giant player in the AU, did not participate in at least four of those same sessions.242 All these indicate a particularly strong commitment to the AU and the African system that is borne of the same kind of positive attitude toward the African system that was displayed by two committees of the South African Parliament when they described the African system as ‘‘complementary’’ to the South African constitutional order.243 This commitment to and positive attitude toward the African system helped shape the correspondence that occurred between some norms of the African system and executive and legislative behaviour within South Africa. For example, South Africa’s commitment to and participation in the AU and the African system helped nudge its government toward invocations of the Charter in executive deliberations (such as in a presidential speech, in government policy statements, and in DOJ program activities). Similarly, its strong commitment to the AU and African system, as demonstrated by its hosting of some AU/African system meetings and the seat of the Pan-African Parliament, also helped further the objective of popularizing the African system among South Africans (including officials, judges, MPs, CSAs, and ordinary citizens). 237 238 240

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242 243

Ibid. at 105. See also First Periodic Report, supra note 116, at 133. See ibid. 239 Ibid. See List of Judges Elected to the African Court of Human Rights, available at www. amtdatatechnologies.com/acc/UploadedDocuments/1242006115621AM718.doc. For example, see Thirteenth Annual Activity Report of the African Commission (on file with the author) at 2; Fourteenth Annual Activity Report of the African Commission (on file with the author) at 2; Fifteenth Annual Activity Report of the African Commission (on file with the author) at 3; Sixteenth Annual Activity Report of the African Commission (on file with the author) at 2; Seventeenth Annual Activity Report of the African Commission (on file with the author) at 2; and Eighteenth Annual Activity Report of the African Commission (on file with the author) at 2. See documents supra note 241. See Proceedings of the National Council of the Provinces, 26 June 2002 (on file with the author) at 2; and Proceedings of the National Assembly, 24 June 2002 (on file with the author) at 2.

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The third factor that facilitated the impact of the African system within South Africa is the deep and strong commitment of the South African state to the application of international human rights norms, a fidelity that has been so strong as to move Makau Mutua to refer to that country as a ‘‘human rights state.’’244 That this description matches the self-image of the South African state is captured in part in Ackermann J’s dictum that: ‘‘In a constitutional democratic state, which ours now certainly is, and under the rule of law, citizens as well as non-citizens are entitled to rely upon the state for the protection and enforcement of their rights.’’245 As importantly, it is relevant here to note that South Africa has ratified a large number of international human rights instruments;246 that the South African Constitution is heavily influenced by international human rights norms;247 and that that country’s Constitutional Court regularly utilizes these international norms in its decisions.248 Additionally, the character of the current South African state has been deeply affected by centuries of resistance to the severity of colonial and Apartheid repression that was waged by a broad array of forces led by the African National Congress (ANC), the current ruling party.249 South Africa is thus widely acknowledged to be at the global forefront of the constitutional protection of human rights.250 The fact that South Africa has been a ‘‘human rights state’’ since 1994 (that is, a state with a strong, though still imperfect, commitment to human rights norms) has rendered that country’s socio-legal soil more fertile for the seed of the African system to grow. A related and fourth factor that has facilitated the domestic impact of the African system within South Africa is the constitutional injunction on South Africa’s courts to apply relevant international norms as interpretive tools in reaching their decisions. The nature of this duty to apply 244

245

246 247

248 250

See M. Mutua, ‘‘Hope and Despair for a New South Africa: The Limits of Rights Discourse’’ (1997) 10 Harvard Human Rights Journal 63. See De Lange v. Smuts (1998) 7 BCLR 779 (Constitutional Court) at para. 31 (emphasis added). See First Periodic Report, supra note 116, at 18. See R. C. Slye, ‘‘International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law’’ (2001) 2 Chicago Journal of International Law 59 at 66. Ibid. 249 See First Periodic Report, supra note 116, at 2. See J. Dugard, ‘‘Twenty Years of Human Rights Scholarship and Ten Years of Democracy’’ (2004) 20 South African Journal of Human Rights 345 at 348–349; and S. Maguire, ‘‘The Human Rights of Sexual Minorities in Africa’’ (2004) 35 California Western School of Law 1 at 8.

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international norms has already been discussed at length at the beginning of section 5.2, and as such will not be dwelt on here. Suffice it to note that this injunction has been duly obeyed by most courts, especially the Constitutional Court, and has led to remarkably frequent references to international human rights treaties in South African judicial decisions.251 While, as we shall soon see, references to the African Charter have been far less numerous than to the UN documents, without this duty to apply international norms as interpretive tools, the African Charter may have been applied with even less frequency. This is so because, in formal legal terms, the Charter is not yet a part of the body of South African laws. The fifth factor that has facilitated the impact of the African system within South Africa is the African system’s longstanding activist and positive attitude toward South African CSAs with respect to supporting and advancing their desire to engage with that system. For example, the African Commission has extended relatively strong support to those South African CSAs which have sought observer status at the African Commission. These applications have been granted without significant difficulty by the Commission. Interestingly, at least three South African CSAs (namely Lawyers for Human Rights, the Centre for Applied Legal Studies, and the Centre for Human Rights at the University of Pretoria) were granted observer status at the Commission even before that country ratified the African Charter in 1996. While the ratification of the Charter by a CSA’s home country is not a precondition for the grant of observer status by the African Commission (after all, even US and European CSAs have obtained such status), the Commission’s decision in those circumstances to allow these South African CSAs this kind of deep access to its operations is nevertheless an indication of the warm reception that these CSAs received. The early engagement of these CSAs with the African system – a circumstance that was certainly facilitated in some ways by their status as official observers – helped create some level of awareness, however limited, within South Africa about the relevance of the African system.

5.7.2 Negative factors One of the most important factors that militated against the impact of the African system within South Africa is the youth of South 251

See Smithey, infra note 261.

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Africa’s membership within the AU and the African system itself.252 Before its liberation in 1994, South Africa was not and could not have been accepted as a member of the Organization of African Unity, the precursor of the AU. It was thus not until 1995 that South Africa signed the African Charter, and another year passed before it was able to ratify that instrument on 9 July 1996.253 Thus, the Charter was adopted over thirteen years before South Africa signed it. Given this very late start, the high level of awareness of and close engagement with the African Charter that is necessary to produce a high level of the kind of correspondence that has sometimes been generated within South Africa between the African system’s norms and that country’s domestic legal order has not nearly been as widespread or bountiful as it would most likely have been had South Africa joined the system much earlier. Another such factor is the formal non-domestication of the African Charter within South Africa. As was shown at the beginning of this chapter, the African Charter has not yet been enacted into South African domestic law by national legislation. As such, the Charter is formally non-binding on the South African courts and on other governmental institutions.254 However, aside from the formal implications of the unincorporated status of the Charter within the South African domestic legal order (such as the increased difficulty of convincing many domestic judges to apply it at all), the non-domestication of the Charter has had more substantive and functional implications as well. For one, the non-incorporation of the Charter into domestic law reduces its visibility within the South African socio-legal order and consigns it to the margins of day-to-day socio-legal practice. As a result, far fewer lawyers, activists, judges, and officials than would have been the case have become aware of its existence, what’s more its relevance. As importantly, the Charter’s salience within the day-to-day thoughts and practices of even those who are aware of its existence and relevance is appreciably reduced as well. It is no wonder, then, that the government and knowledgeable CSA

252 253

254

See Proceedings of the National Assembly, 25 May 2000 (on file with the author) at 8. See Initial Report, supra note 139, at 2. See also F. Viljoen, ‘‘State Reporting under the African Charter on Human and Peoples’ Rights: A Boost from the South’’ (2000) 44 Journal of African Law 110 at 113. See Initial Report, supra note 139, at 104. See also Annual Report of the DOJ, 2004/2005, supra note 111, at 27.

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activists have acknowledged the low visibility of the Charter within South Africa as a problem to be fixed.255 This brings us to the third factor that has impeded the African system’s percolation into South Africa’s domestic socio-legal praxis. This is that the relatively low visibility of the African Charter which is discussed above has led to a significantly low level of awareness of the relevance of the Charter both among the general public and within the community of the very CSAs that have often served as the major drivers of the processes that have led to the generation of some correspondence between the African system and the South African socio-legal order. The utilization of the Charter within South Africa has also been similarly affected by its relatively low visibility in South Africa. As the government stated in its Initial Report to the African Commission in 1998, ‘‘[p]ublic awareness of the Charter has not been raised since the Charter was acceded to. It thus becomes difficult for South Africans to assert their rights as guaranteed by the Charter.’’256 Although the government claimed in 2005 (and is probably correct in so claiming) that public awareness was raised during South Africa’s preparations to host the Thirty-first Ordinary Session of the African Commission,257 the point being made here (that the extent of public awareness and activist utilization of the Charter is relatively low in South Africa) is still a valid one.258 The fact that this assessment applies to CSAs is also evident from the discussion in sections 5.5 and 5.6. The fourth factor that has militated against the African system’s impact within South Africa is the relatively low number of South African CSAs that have gained observer status at the African Commission. As has already been shown in section 5.6, only eleven or so of these CSAs had been granted such status by March 2006, and nearly half of this number gained this status between 2001 and 2005. While this paucity in the numerical representation of South African CSAs at the African Commission is, of course, an indication of the significantly low engagement with and utilization of the African Commission by this

255

256 257 258

See Initial Report, supra note 139, at 99. This assessment was confirmed by participantobservation in late 2005 at two well-attended HURISA seminars to educate other South African CSAs about the African system. See Initial Report, supra note 139. See First Periodic Report, supra note 116, at 126. This was confirmed in an interview with a senior HURISA activist in late 2005. HURISA leads the effort to spread awareness of the African Charter in South Africa.

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national community of CSAs, it has also impeded appreciably the effort to create awareness of the African system within South Africa itself. It is only reasonable to calculate that the greater in number the local South African CSAs which closely engage with the system (as observers) are, the more awareness of the system is created domestically among CSAs and the general public; and the more awareness of the system there is within the country, the more opportunities there are for the creative invocation of the system within that domestic context. The fifth factor that has militated against the impact of the African system within the broader South African socio-legal order is the failure on the part of South Africa’s key governmental human rights institutions (such as the CGE and the SAHRC) to sufficiently or even routinely engage with the African system or use the Charter in their own work. As has already been shown, the utilization of the Charter in the work of even these specialized human rights organs of the South African government has, thus far, been less than impressive. This is not, of course, to suggest that these institutions have not sometimes deployed the Charter or engaged with the African system. As has been demonstrated elsewhere in this chapter, the contrary is in fact true. It is also true that Dr. Barney Pityana, recently the Chair of the SAHRC, was at the same time a member of the African Commission. The more measured point that is being made here is that these bodies have not engaged with the African system in nearly as much measure as should reasonably be expected, given their exclusive human rights remits and their location in a key African country. Had they utilized the Charter in much larger measure, the African system would certainly have gained in visibility within South Africa and would have exerted much more influence on domestic legislation, governmental deliberations and practices, and so on. The sixth factor that impeded the impact of the African system in South Africa was the propensity during the relevant period among all too many judges of the South African Constitutional Court to place greater reliance on United Nations instruments, European treaties, Inter-American documents, and foreign (mostly US and Canadian) cases in the articulation of the reasons for their decisions. In the vast majority of the human rights cases that have been decided by this apex court, the African Charter is not even mentioned at all. And even in those cases in which the Charter is mentioned or discussed, the penchant of most of the judges (save perhaps for Ngcobo J) has been to cite and rely on the African Charter only as one item in a more or less long list of

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international human rights instruments.259 Even a cursory examination of the texts of the judicial decisions discussed in section 5.2 reveals this tendency. In fact, on the whole, the court may have cited each of the relevant UN, European, and US instruments in far more measure than it has referred to the African Charter!260 For a court that is located in an African country and whose government now plays a key role in the African Union and the African system, this tendency is disappointing.261 More importantly, this penchant for robustly referencing non-African human rights documents, sometimes to the exclusion of the African Charter, has clearly contributed to the less than optimal impact that the African system has had within South Africa. Had many of these judges been more activist in deploying the African Charter (had they behaved more like Ngcobo J), the African system would have loomed far larger 259 260

261

See Ukhuegbe, supra note 202, at 1. Ibid. For some of the more egregious examples of this penchant, see Christian Education South Africa v. Minister of Education (2000) 10 BCLR 1051 (Constitutional Court) (in which the UN Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR) were relied on by the court while basically ignoring the African Charter); and Minister of Home Affairs and another v. Fourie and another, supra note 134 (in which the Universal Declaration of Human rights and the ICCPR were relied on while essentially ignoring the African Charter which had been cited to the court by some of the amici curiae). In Makwanyane, Case v. Minister, and Laugh it Off Promotions (already discussed in section 5.2), the relevant judges mentioned the African Charter in footnotes. The reasons for this penchant are beyond the strict scope of this book, but scholars have pointed fingers at various reasons. See Ukhuegbe, supra note 202, at 3 (heavy Western support in the development of litigation resources in South Africa; heavy Western donor support for CSAs like the Legal Resources Centre who bring many human rights cases; and the many Western trained clerks that serve the judges); S. I. Smithey, ‘‘A Tool, not a Master: The Use of Foreign Case Law in Canada and South Africa’’ (2001) 34 Comparative Political Studies 1188 at 1195–1196 and 1207 (the absence of indigenous jurisprudence; the felt need within the court to gain legitimacy both at home and abroad and the desire to take advantage of the experience of other societies); and S. Choudhry, ‘‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’’ (1999) 74 Indiana Law Journal 819 at 841–855. The heavy influence of UN, US, European, and Canadian sources on the South African Constitution itself cannot be discounted. See D. M. Davis, ‘‘Constitutional Borrowing: The Influence of Legal Culture and Local History in the Reconstitution of Comparative Influence: The South African Experience’’ (2003) 1 International Journal of Constitutional Law 181 at 187 and 191; and M. Pieterse, ‘‘Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience’’ (2004) 26 Human Rights Quarterly 882 at 886–887. Another such reason may be the feeling in some quarters that the African Charter is not as fully fleshed out as the South African Constitution with respect to rights like the right to housing.

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on the constitutional and social landscape of South Africa; would have percolated much more into public, CSA, legislative, executive, and judicial consciousness; and as such would have played more of a role within the country in shaping the deliberations, debates, and decisions that affect the human rights of those who are touched by South African law and policy. Activist judges (acting as brainy relays) are after all one of the major drivers of the processes via which valuable correspondence has sometimes been generated between the norms of the African system and the character of a domestic socio-legal order. The last such factor was the tendency of South African activist forces to deploy the African Charter much more in respect of civil/political rights (CPR) matters than in connection with socio-economic (ESC) rights cases. It is most likely that this tendency has helped limit the African system’s impact on the lives of the vast majority of South Africans who have for so long suffered, inter alia, from egregious deprivations of their ESC rights, and who continue till this day to live in abject poverty.262 Needless to say, for almost all of these subalterns, the enjoyment of ESC rights has always been and will continue to be a huge priority. Again, it is only reasonable to suggest that the more relevant the invocations of the Charter within South Africa are to the lived experiences and priorities of the vast majority of South Africans, the more impact the Charter will have in shaping that experience. Since the Charter has not been invoked nearly as much in the ESC rights area, the incidences of Charter invocation that local activist forces have often generated have rarely spoken effectively to this key priority of the vast majority of South Africans. What is more, the more frequent domestic invocation of the Charter may have also served an added educational function. It could have helped to further popularize the African system. This is especially so since knowledge of the existence and relevance of an additional ESC rights resource like the Charter was likely to more rapidly catch the attention of a large percentage of the members of South Africa’s vast majority underclass who were previously uninformed, inattentive, or both. This is not to argue that knowledge of the relevance of the CPR provisions of the Charter did not help popularize the Charter to some extent, but to suggest that awareness of the relevance to their lives of the Charter’s ESC rights provisions would have further popularized the Charter among this vast majority population. However, it must be noted that since the South African Constitution is often seen globally 262

See Pieterse, supra note 261, at 883.

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as the cutting edge document in the ESC rights area, there may have been less incentive on the part of South Africa’s activist forces to invoke and rely upon the African Charter’s ESC rights provisions. What is more, the ESC rights jurisprudence of the African Commission is still rather under-developed. For, although the African Commission has in fact decided a handful of ESC rights cases, the Ogoni and Purohit cases are probably the only such cases in which the Commission has interpreted the ESC rights provisions of the African Charter in sufficiently rigorous detail.263 Nevertheless, given the fact that many of the ESC rights provisions of the African Charter have been crafted in a more expansive manner than similar provisions in the South African Constitution and the International Covenant on Economic, Social, and Cultural Rights, the relative marginalization of ESC rights in the course of the domestic percolation of the African system’s norms is still not justified.264 The Charter does have much to offer in the ESC rights area to activist forces in South Africa and elsewhere. On the whole, as has been argued here, the tendency of South African activist forces to refer to the Charter much more in respect of CPR than ESC rights has helped limit the impact of the African system within South Africa.

5.8 Summary of the arguments In this chapter, it has been shown that the African system has, to a limited extent, had an appreciable impact within South Africa. The system has to a modest extent helped shape judicial reasoning, has impacted executive deliberations and behaviour, has influenced the character of legislative debate, and has influenced the operations and discourse of some CSAs in this key African country. In so impacting these domestic institutions and actors, some correspondence has been produced between the African system’s norms and the domestic sociolegal order in South Africa. It has also been shown that the facilitative role played by activist forces (such as some CSAs, judges, and MPs) was mostly a key factor in the successful production of this correspondence. It was also shown that although the African system has had some impact 263

264

See Social and Economic Rights Centre and another v. Nigeria, Communication 155/96, Fifteenth Annual Activity Report of the African Commission, 2001–2002 (on file with the author) at 31; and Purohit and Moore v. Gambia, Communication 241/2001, Sixteenth Annual Activity Report of the African Commission, 2002–2003 (on file with the author) at 62. See also Mbazira, supra note 192, at 2. See ibid.

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in South Africa, such impact has been sub-optimal in the circumstances. The reasons for both the success that was enjoyed and the failure to achieve much more impact were also offered. As importantly, implied in the discussion is the fact that the limited but still quite valuable impact that the African system has had within South Africa was achieved largely beyond the cognition or comprehension of the traditional compliance paradigm for evaluating and measuring IHIs like the African system. In this way, were interesting insights into the various creative ways in which IHIs help shape or reshape the logics of appropriateness held within key domestic institutions provided, much to the credit of the broadly constructivist approach to understanding IHI impact. In the next chapter, an attempt will be made to show that preliminary indications from other African countries tend to reveal that this demonstrated capacity of the African system to generate correspondence (what I have styled the ‘‘ACHPR phenomenon’’ elsewhere) promises to have a somewhat broader relevance and generalizability in the African context. While the evidence from these other sources is not as extensive as the evidence from Nigeria and South Africa, it is still quite significant.

6 Limited deployment of the African system within African states: further evidence and a general evaluation

6.1 Introduction One of the major tasks accomplished in this chapter is the mapping and analysis of the extent and significance of the more modest impact that the African system has had within some other African states (that is, other than Nigeria and South Africa). This discussion will form the basis for the argument that the available evidence points tentatively to the conclusion that the African system (like other IHIs)1 can under certain conditions contribute to the production of valuable correspondence, facilitated by activist forces, between some of its norms and the behavior of key domestic governmental institutions within some African states (what I have referred to earlier in this book as the ‘‘ACHPR phenomenon’’). This discussion will of necessity be shorter than our examination, in chapter 4, of the African system’s influence within Nigeria. This is explained by the fact that the bulk of the available evidence regarding the African system’s domestic impact tends to lie outside these other countries. The other major task that will be accomplished in this chapter is to attempt to specify, as broadly and accurately as possible, the conditions for the optimization of the African system’s impact within African states. This analytical exercise will be grounded in the evidence adduced in chapter 4 (in respect of in Nigeria), chapter 5 (regarding South Africa), and in the present chapter (in respect of a sample of other African countries). What, it will be asked, are the factors that have combined to facilitate the African system’s modest influence within the relevant African states? What factors have combined to militate against that system’s influence within those same states? To what extent 1

See C. Heyns and F. Viljoen, ‘‘The Impact of United Nations Human Rights Treaties on the Domestic Level’’ (2001) 23 Human Rights Quarterly 483 at 487.

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have activist forces such as civil society actors (CSAs), activist judges, labor activists, student unionists, activist journalists, and activist politicians played a role in generating the domestic impact of the African system? What does an analysis of the operation of these factors suggest about the possibility of maximizing the production of the kind of correspondence that this book is concerned with within African states? What does this analysis also suggest about the ways in which an IHI like the African system can help shape the self-understandings, conceptions of interest, or logics of appropriateness held within key domestic institutions? Under what conditions can the broadly constructivist process via which these changes are fostered be optimized? In the above connection, it is important at the outset to note that only eight years after the adoption of the African Charter, and just three years after its entry into force, a Nigerian judge, Olusola-Thomas J, had felt able to declare most optimistically in Gani Fawehinmi v. IGP that: The [African] Charter has no doubt exerted and is still exerting unquestionable influence within member states of the Organisation of African Unity and provides public opinion with a yard-stick for judging political behaviour by each member state.2

Over a decade later, in 2003, Curtis Doebbler reached a somewhat similar conclusion in respect of the African Commission when he declared that while many criticisms of the Commission are often justified: it is wrong to conclude that the Commission has not made a valuable contribution to the protection of human rights. Indeed, the Commission has extended human rights protections to areas where no other international human rights body has dared to tread . . . Also in reaction to problems of implementation, the Commission has taken a more proactive role in confronting governments that ignore its decisions by acting either directly or through the Assembly of Heads of States and Government[s].3

However, writing almost twenty years after the adoption of the Charter, and over thirteen years after its entry into force, Joe OlokaOnyango, a very knowledgeable observer of the African human rights 2 3

Suit M/324/89 (Lagos High Court, unreported). See C. F. J. Doebbler, ‘‘A Complex Ambiguity: The Relationship between the African Commission on Human and Peoples’ Rights and Other African Union Initiatives affecting Respect for Human Rights’’ (2003) 13 Transnational Law and Contemporary Problems 7 at 14–15.

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terrain, reached a much more pessimistic conclusion about the level of influence exerted so far by the African Commission (the other major component of the African system). In his view, after more than a decade in existence, the Commission has ‘‘hardly made a dent’’ in the African human rights scene.4 An accurate assessment of the African system’s continent-wide impact today would lie somewhere between these two positions. Indeed, even relatively harsher critics of the African system, such as Oloka-Onyango himself and Nsongura Udombana, now seem to have shifted to the middle ground. For example, despite his identification of many problems with the Commission’s operations and jurisprudence, Oloka-Onyango has recently described the Commission’s landmark decision in Social and Economic Rights Action Centre and Centre for Economic and Social Rights v. Nigeria (the ‘‘Ogoni’’ case)5 as ‘‘a critical turning point both for the Commission and for human rights law on the African continent.’’6 And even while suggesting that ‘‘there is still a wide gap between the promise in the Charter and the performance of African states,’’ Udombana has made bold to declare that: By recognizing actio popularis [anyone’s ability to petition the Commission regardless of whether or not she is an actual victim of the violation], the African Charter has enabled many individuals, CSAs, and indirectly, states, to test its guarantees. These communications, in turn, have enabled the Commission to develop human rights jurisprudence in Africa and provide guidance to domestic courts.7

In an attempt to systematically map the complex terrain of the African system’s even more modest impact thus far within other African states, as well as to assess its promise within those states, I have organized the rest of the chapter in the following way. In section 6.2, I discuss the available evidence regarding the very modest impact that 4

5

6

7

See J. Oloka-Onyango, ‘‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’’ (2000) 6 Buffalo Human Rights Law Review 39 at 72. See Communication 155/96, available at www1.umn.edu/human rts/africa/comcases/ 155-96b.html. See J. Oloka-Onyango, ‘‘Reinforcing Marginalized Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for Peoples’ Rights in Africa’’ (2003) 18 American University International Law Review 851 at 913. See N. J. Udombana, ‘‘Between Promise and Performance: Revisiting States’ Obligations under the African Human Rights Charter’’ (2004) 40 Stanford Journal of International Law 105 at 138.

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the African system has had on the executive branches of government within a number of African states. In section 6.3, I detail and analyze the equally modest influence that the African system has exerted on the judiciaries of certain African states. In section 6.4, I focus on the significance of the very modest impact of the African system on legislative action within a number of African states. In section 6.5, I examine the very modest evidence of the modest impact that the system has had on the operations of CSAs within certain African states. It is in section 6.6, however, that I concentrate on specifying the factors that have facilitated or militated against the African system’s ability to exert influence within the relevant states. This is a systematic way of focusing my analysis on the specification of the minimum conditions for the optimization of the African system’s domestic impact within African states. Section 6.7 concludes the chapter. There, I summarize the arguments presented in this chapter and link them to the analysis that will be conducted in the chapter that follows. To be clear, two over-arching arguments will be made in this chapter. Though dependent on the first argument, the second argument will be more important. The first is that the African system has had a much more modest impact within other African countries than it has had within Nigeria and South Africa, and that this more modest feat was accomplished in ‘‘alliance’’ with the local activist forces (mainly activist judges, CSAs, and activist lawyers who operate within the relevant countries).8 It is these activist forces which have, in one way or the other, acted as the intelligent transmission-lines between the African system and various domestic governmental institutions in the relevant states (such as the courts, the executive, and the legislature). In this process of trans-judicial communication, these activist forces played the role of brainy relays that did not merely transmit, but also contributed actively to the development and strengthening of both the relevant domestic socio-legal regime and the African system. The African system and these activist forces were allied in a ‘‘virtual partnership,’’ a human rights network. It will be suggested that the constructivist approach to IHIs is strengthened by this argument. The second and more important 8

On the remarkably close alliance between the African system and CSAs, see G. W. Mugwanya, Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System (Ardsley, NY, Transnational, 2003), pp. 249–251 (describing the African Commission and CSAs as extraordinarily ‘‘close partners’’ to an extent that surpasses the closeness between CSAs and the United Nations and other regional human rights systems).

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over-arching argument which is made in this chapter is dependent on the first. It is that the evidence that is discussed in the chapter suggests that the African system has had, and can have, an appreciable domestic impact within a significant number of African states; and that under certain specified conditions, the African system can optimize that promise. On a methodological note, it is important at the outset to justify the consideration in this chapter of evidence from some but not all African states. Aside from the fact that space does not allow the consideration in a book such as this of the position in all fifty-four African states, the reality is that the relevant evidence is distributed unevenly on the continent. Indeed, as has already been shown, most of it is concentrated in countries such as Nigeria and South Africa. What is more, the remainder of the evidence is concentrated in a few other states. What has been done here, therefore, is to seek the evidence purposively and to follow it wherever it has led. This is quite appropriate given the fact that one of the underlying aims of the present chapter is to show that other evidence exists which supports the orientation of the key Nigerian and South African case studies. In any case, the present chapter certainly does not pretend to be comprehensive. The objective here is not to show that the African system has had domestic effect across all of Africa (in which case a representative sample from South, East, West, North, Francophone Africa, Islamic Africa, and so on, would be required), but that there are a few African countries in which the extant phenomenon is beginning to occur. Thus, the method adopted is purposive. In the purposive method, there is no a priori test for including one country but not the other (other than that evidence regarding the identified trend has been found there). This is hardly problematic, since the point of the whole book (including the chapters on Nigeria and South Africa) is to identify, discuss, and analyze evidence that tends to show a possibility of domestic correspondence with the African system’s norms; rather than to account comprehensively for that system’s domestic impact across the continent.

6.2 Impact on executive thought and action The overall aim of this section is to show that the available evidence supports the proposition that, due in part to the African system and to the efforts of the activist forces that operate as its ‘‘virtual network’’ partners, a significant though still very modest level of ‘‘correspondence’’ between the system’s norms and the behavior of executive

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branches of government within certain African states (other than Nigeria and South Africa) has sometimes been generated. Put differently, the evidence suggests that the ACHPR phenomenon can also occur within certain other African states. A number of examples will suffice to demonstrate this point. In the now famous decision in Attorney General of Botswana v. Unity Dow,9 Ms. Unity Dow, a citizen of Botswana who had married a US citizen, sued the government of Botswana. Her claim was that by in effect denying the citizenship of Botswana to the children of that marriage, the Citizenship Act of Botswana of 1984 was discriminatory and unconstitutional. The relevant Act granted citizenship to the children of male citizens of Botswana who had married foreign women, but not to the children of female citizens of Botswana who had married foreign men. Ms. Dow won at the court below. The government appealed that decision. The Court of Appeal of Botswana struck down a provision of the citizenship law of that country that had in effect discriminated against women. In response to this decision, the government of Botswana eventually moved to amend the citizenship law in issue so as to repeal the offensive provisions. In coming to its decision, the Court of Appeal made very significant references to the African Charter, especially as an interpretive tool.10 The court felt able to rely in this manner on the Charter despite the fact that that treaty had not been incorporated into Botswana’s domestic legal order. The court was of the view that since ‘‘Botswana is a signatory’’ and is ‘‘one of the credible prime movers behind the promotion and supervision of the Charter,’’ domestic legislation in Botswana should be interpreted so as not to conflict with that country’s obligations under the Charter. The Charter was thus a very important factor that helped to justify, complement, and legitimate this court’s assault against the legislation and those prevailing norms of Botswana’s society that were patriarchal. The Charter, and Botswana’s participation at the forefront in the African system, clearly helped to inspire the progressive orientation and tone of this decision. And since the Court of Appeal’s decision was eventually reflected in the impugned law, key as it was to the decision, the African Charter cannot 9

10

(1992) LRC (Const.) 623. Also cited at (1994) 6 BCLR 1 (Botswana) and (1992) SACLR LEXIS 7. See Oloka-Onyango, supra note 4, at 63–64. See also F. Viljoen, ‘‘Application of the African Charter on Human and Peoples’ Rights by Domestic Courts in Africa’’ (1999) 43 Journal of African Law 1 at 3–4. See, e.g., Aguda J at 135–136 (1992) SACLR LEXIS 7.

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but be viewed as having exerted a significant level of influence, albeit indirectly, on both legislative and executive action within Botswana. This indirect influence was exerted on the executive because it was that branch of government that moved to amend the impugned law. This indirect influence was also exerted on the legislature because it agreed to change that law. As such, this decision will be referred to again in sections 6.3 and 6.4. It is important to note that the end result of the Unity Dow case may not have been achieved without the facilitative role that was played by the activist lawyers and judges who invoked the relevant international human rights instruments, including the African Charter, as a critical resource that allowed them to reformulate the character of women’s civic rights in Botswana, and alter existing beliefs and logics around the state’s interest in conferring citizenship rights in a manner that discriminated against women. The elements of this transformational process bear many of the hallmarks of the quasi-constructivist account of IHI impact: the activist lawyer (who is a part of the domestic activist forces) as norm entrepreneur; the detailed ends-means calculations that these activist lawyers made; and the ideational, epistemic, and normative (non-material) power that is transmitted from the given IHI to the local context. Botswana’s eventual reaction to a decision of the African Commission is as instructive. In John K. Modise v. Botswana,11 the complainant was the child of a Botswanan father and South African mother. He had been born in South Africa but was raised in Botswana. He later became one of the founders of the opposition Botswana National Front. He claimed that this was the cause of his subsequent declaration by the government as a ‘‘prohibited immigrant.’’ In October 1978, he was arrested and deported to South Africa. He was also deported on subsequent returns to Botswana. He later moved to the then Bantustan of Bophuthatswana, but was also deported from there to the ‘‘no-person’s land’’ that lay between Bophuthatswana and Botswana. He lived in that space for five weeks before being admitted to Botswana on a humanitarian basis. He subsequently lived in Botswana under temporary three-month resident permits, renewable at the absolute discretion of the minister concerned. He requested to no avail that the government of Botswana recognize him as a citizen of that country by birth. Aided by a CSA, he then filed a petition at the African Commission. The Commission’s resilient

11

Communication 97/93 (1999) 6 International Human Rights Reports 828.

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intervention in the matter of Mr. Modise’s repeated deportation from 1978–1995, through several letters and communications, led to the concession on the part of the government of a partial remedy for this opposition leader’s citizenship problems. The government granted him a form of citizenship (citizenship by registration), which while it was not as ample and beneficial as ‘‘citizenship by birth’’ to which he seemed to be entitled, still left him in a much better situation than he had been for the previous seventeen years. In all those years, he had been forced to live as a stateless person outside Botswana. What is more, in November 2000, the Commission decided that although it had already granted Mr. Modise citizenship by registration, Botswana was in breach of several provisions of the African Charter, and was under a legal duty to recognize him as a citizen by birth.12 This can only be a bonus. The key point is that even the partial remedy that was conceded by Botswana was a significant indication of the ideational and normative impact that the Commission had exerted on the executive branch of government in this country. Here, the invocation of the African system worked within the domestic context (without direct compliance as such) to produce important changes in the logics of entitlement to and denial of citizenship, as well as in the treatment of political opponents. There was no direct compliance with the Commission’s decision that Mr. Modise was entitled as of right to citizenship by birth, just correspondence with that body’s general normative inclination. Indeed, the concession from the government was made independently of the Commission’s decision, and the correspondence that occurred was brokered to an appreciable extent by the work of the CSA that brought the petition to the African system and kept the matter in the public eye. Many of the key hallmarks of quasi-constructivism that were identified in chapter 2 and mentioned above are also visible in this story. Evidence of the influence that has been exerted by the African system on executive decision-making and action within other African states is present in the success enjoyed at various times by the African Commission in breaking down and overcoming the resistance of target states (such as Togo, Mauritania, Senegal, and the Sudan) to its conduct

12

See Institute for Human Rights and Development, Compilation of Decisions on Communications of the African Commission on Human and Peoples’ Rights 1994–2001 (Banjul, The Gambia, Institute for Human Rights and Development, 2002), p. 42 (hereafter ‘‘Compilation of Decisions 1994–2001’’).

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of on-site investigative missions within their respective territories.13 In the early days of its existence, the conduct of such missions by the Commission was considered almost too difficult a project to undertake given the historically understandable resistance of almost all of the newly decolonized African states to ‘‘international’’ interference within their borders. In the first six or so years of the Commission’s existence, no such missions were conducted at all. Yet the human rights situation in most African states was not more benign during that period than it has been in subsequent years. What has changed is the thaw in the resistance of many African states to the conduct of such missions. Even then, in some of these states, government officials still view such visits as somewhat misguided and hostile. As a one-time Chair of the African Commission has noted, ‘‘when consent is given [by states] and visits take place, occasionally the distinct impression is gained that the host country’s stance is that it could well have done without the visit.’’14 Given such resistance from relevant government officials, and given the Commission’s youth and perennial resource-funding challenges, it is remarkable that the Commission and its network partners have been able to sustain the amount of direct and indirect pressure on states needed to ensure that such visits do take place. Here again, the Commission’s modest success has been in relation to securing the needed consent from the executive branches of government in those states. In the cases in which its efforts have been successful, local activist forces played a key role in the local campaigns that created the buzz and attention on the particular situation and in pressuring the Commission to undertake the mission that helped shape the government’s decision to invite the Commission to investigate its human rights record. Pressure was maintained by CSAs (acting as the brokers) at two main nodal points: on the Commission (which CSAs wanted to undertake the particular investigative mission) and on the relevant government (which CSAs wanted to invite the Commission to conduct the mission). Thus, the various governments’ hands were forced more by this domestically-generated pressure than by any formalistic adhesion to or compliance with the African system’s norms or decisions by the relevant governments. Although this process is akin to a process of producing 13

14

See E. V. O. Dankwah, ‘‘The African System for the Protection of Human Rights: The Task Ahead,’’ National Human Rights Commission Lecture Series No. 3, delivered at Abuja, Nigeria in 1998 (on file with the author) at 10. Ibid. at 6.

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voluntary state compliance, it is not exactly that and is not easily explained as such. In any case, since the state compliance measure is incorporated in the concept of correspondence, the existence of some overlap between the processes via which correspondence was produced in these cases and those through which state compliance can be attained is not in itself worrisome or fatal to the argument. In addition, facilitated in like fashion, the Commission has also successfully undertaken promotional missions to states such as Zimbabwe, Malawi, Botswana, Namibia, Ghana, Mozambique, and Lesotho.15 Even though states are usually not as irritated by such promotional visits as they are by investigative missions that seem to single them out for closer inspection, the arguments made above apply nevertheless. Without the invitation of the executive branches of government in these states no such visits would have been undertaken. In each such case, the promotional visit was undertaken partly in reaction to the extensive work that had been done by local activist forces in highlighting the need for such a visit. In any case, the very fact that such visits were allowed at all by the relevant states indicates a measure of influence on the ‘‘thinking’’ that occurred within the relevant domestic institutions. It seems that the relevant officials reversed decades of ‘‘stonewalling’’ against such visits in part because they had increasingly come to realize that it was in fact more in their self-interest than otherwise to allow such visits to occur. Such visits often helped portray them as more reasonable than they would have appeared had they refused permission for the visits. As significantly, the African Commission’s Special Rapporteur on Prisons in Africa has been able to conduct on-site inspections of the prisons of a number of African countries, such as Zimbabwe, Mali, Mozambique, and Madagascar.16 The consent of these states to a visit that would expose some of their ‘‘dirtiest linen’’ in public is a significant triumph for the African system. It indicates to some extent that the Commission has had some success in influencing the decision-making processes of the executive branch which usually consents to such visits. Moreover, as Dankwah has noted, in the end, a state like Mali responded quite favorably to the Commission’s recommendations on measures that would improve the conditions of its prisons.17 The arguments made above regarding the activist forces-facilitated alterations in conceptions of interest that precede the grant of permission for visits also

15

Ibid. at 10.

16

Ibid.

17

Ibid.

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apply here with necessary modifications. This evidence also lends added credence to the broadly constructivist approach to IHI impact. Again, even though his attribution of credit to the African system may have been somewhat excessive, Dankwah has correctly noted that the Commission has exerted a modest but significant amount of influence on the executive branch within Togo and other countries during very difficult periods in the lives of these countries. In his view: Violations have abated . . . as a result of exchange of correspondence between the Commission and those countries against which complaints had been made.18

As in the other cases discussed above, no direct state compliance occurred as such in this process of CSA-brokered communication (exchange of letters) via which some correspondence was produced between the behavior of the government in the country and some norms of the African system. In Ghana, despite the non-incorporation of the African Charter into its domestic legal order, the chief legal officer of its government, (i.e, the Attorney General of Ghana) has found it useful to rely on certain provisions of the Charter in formulating the arguments that the government made in a case that was heard fairly recently by the Supreme Court of Ghana.19 While this use of the Charter was not of momentous import, and no activist forces actively mediated this particular communication of the African system’s norms, it is still clear evidence of the subtle percolation of the African system’s norms into the ‘‘thinking’’ processes of the executive branch in Ghana – the branch of government which is usually the most resistant to IHI influence. Moreover, the ideational/ epistemic and normative communication that occurred, and the detailed ends-means calculations that were made by this high official, testify to the power of the broadly constructivist IHI optic. Evidence that supports the Commission’s increasing (although still quite modest) influence on, and its relevance as a factor to be taken seriously by, the executive branches of government in many African states is decipherable from the character of a number of other events and 18 19

Ibid. See (1996) Africa Legal Aid Quarterly 45 (October–December). See also Viljoen, supra note 9, at 6; and E. A. Ankumah, ‘‘Introduction to the Conference on the Legal Profession and the Protection of Human Rights in Africa’’ in E. A. Ankumah and E. K. Kwakwah (eds.), The Legal Profession and the Protection of Human Rights in Africa (Accra, Africa Legal Aid, 1999), p. 13.

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occurrences. For instance, in response to the Commission’s very critical resolution, Algeria took the pains to send (and bore the costs of sending) a high powered delegation to the Seventeenth Session of the Commission in order to point out what it claimed was a false premise on which the resolution was founded.20 The Commission graciously admitted its fault and withdrew the resolution. Clearly, although we must be careful not to over-estimate the significance of this event, it is fair to say that Algeria was worried enough by the resolution to take this trouble to persuade the Commission to withdraw it. Since the Commission’s resolutions are formally non-binding, an obvious explanation is that it was worried by the extent to which such a resolution would damage its reputation. In this way, Algeria’s executive decisionmaking process and actions were affected and influenced by the Commission’s work. An account of the seriousness with which Algeria took the Commission’s work in this case cannot be complete without mention being made of the mildly facilitative role that was played by CSAs in publicizing the Commission’s work, campaigning against states that do not treat seriously with it, and purveying Commission and Charter norms within states. These activities created the overall context – the normative lure – that affected to some extent the thinking processes that led to Algeria’s actions. Again, Mali’s invitation to the Commission (in 1992) to send a mission to observe its elections buttresses the point that many African states have come to take the Commission’s work more seriously than has hitherto been the case as a (de)legitimating factor which has to be considered in executive decision-making and action.21 Clearly, Mali’s invitation was well calculated. States do not go out of their way to invite an international institution to observe elections within their borders unless the presence of that institution at the elections can somehow inspire confidence. That invitation was, it is reasonable to deduce, aimed at harvesting some of the legitimacy that it viewed the Commission as possessing. The argument that was made above about CSA-facilitated alterations in understandings that preceded such invitations to visit also apply to this context as well. The growing (although still modest) stature of the African Commission in the eyes of officials of the executive branches of 20

21

See E. A. Ankumah, The African Commission on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1996), p. 24. Ibid. at 23.

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government within African states is also evident from the number of states that are represented at its sessions, as well as deducible from the high status of such state representatives. Since states parties are not really bound to attend most of these sessions or to send officials of a high status, especially when their state reports are not being considered, their increasing presence at these sessions is in itself remarkable given the time and expense involved. For example, at its Sixteenth Ordinary Session, government officials from eight countries were in attendance. At the time, many observers considered this to be a remarkable upsurge in the level of attention paid by African states to the Commission’s work.22 This trend continued at subsequent sessions.23 And at its Twenty-seventh Ordinary Session, the representatives of twenty-seven states parties were present.24 The African Commission explicitly remarked at the exponential increase in the participation of states parties at its sessions, describing the increase in numbers as ‘‘massive.’’25 Twenty states participated in the Commission’s Twenty-eighth Ordinary Session, while thirty-one were present at its Twenty-ninth Ordinary Session.26 Its Thirtieth Ordinary Session attracted twentynine states, and thirty-six states attended its Thirty-first Ordinary Session.27 A substantial number of states (nineteen and twenty-two respectively) attended the Commission’s Thirty-second and Thirtythird Ordinary Sessions.28 In the same vein, twenty-six countries sent representatives to each of its Thirty-fourth and Thirty-fifth Ordinary Sessions.29 And as impressively, twenty-nine states attended

22

23

24

25

26

27

28

29

See A. Danielsen and G. Oberleitner, ‘‘16th Session of the African Commission on Human and Peoples’ Rights’’ (1995) 13 Netherlands Quarterly on Human Rights 80 at 82. See S. Malmstrom and G. Oberleitner, ‘‘The 17th Session of the African Commission on Human and Peoples’ Rights’’ (1995) 13 Netherlands Quarterly on Human Rights 292 at 293. See Thirteenth Annual Activity Report of the African Commission, 1999–2000 (on file with the author) at 2. See Final Communique of the 27th Ordinary Session of the African Commission, para. 17 (on file with the author). See Fourteenth Annual Activity Report of the African Commission, 2000–2001 (on file with the author) at 3. See Fifteenth Annual Activity Report of the African Commission, 2001–2002 (on file with the author) at 3. See Sixteenth Annual Activity Report of the African Commission, 2002–2003 (on file with the author) at 3. See Seventeenth Annual Activity Report of the African Commission, 2003–2004 (on file with the author) at 2.

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its Thirty-sixth Ordinary Session, while twenty-six countries were present for its Thirty-seventh Ordinary Session.30 This type of modest increase in the stature of the Commission is also evidenced by the remarkable seriousness with which the Commission and many of the national human rights commissions which have been established on the continent have treated each other. For one, articles 26 and 45 of the African Charter encourage the creation of national human rights institutions by governments. The articles provide respectively that states parties shall, among other things, ‘‘allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed,’’ and that the Commission ‘‘encourage national and local institutions concerned with human and peoples’ rights.’’ To this end, the Commission has increasingly encouraged member states to create their own national human rights institutions.31 In its Mauritius Plan of Action, the Commission declared its intent to encourage the establishment of national human rights institutions on the African continent and the development of a program to reinforce such structures.32 In practice, representatives of national human rights institutions have been allowed to participate in and contribute to the public sessions of the African Commission, sometimes sitting with the delegation of their own state and sometimes with CSA representatives.33 This highly receptive attitude on the part of the Commission toward these national human rights commissions has been much reciprocated. For instance, in February 1996, the participants at the First African Conference of National Institutions for the Promotion and Protection of Human Rights adopted the ‘‘Yaounde Declaration’’ which affirmed the commitment of member institutions to the principles enshrined in the African Charter.34 Even more specifically, the Kenyan National Commission 30

31

32 33

34

See Eighteenth Annual Activity Report of the African Commission, 2004–2005 (on file with the author) at 2. For example, see the Mauritius Plan of Action of the African Commission, available at www.achpr.org/english/_doc_target/documentation.html?../declarations/declaration_ mauritius_en.html; and the Resolution of the African Commission on the Establishment of Committees on Human Rights or other Similar Organs at National, Regional or SubRegional Levels (1989) www.achpr.org/english/_doc_target/documentation.html?../ resolutions/resolution05_en.html. Ibid. See Human Rights Watch, Protectors or Pretenders? Government Human Rights Commissions in Africa (New York, Human Rights Watch, 2001). See the Yaounde Declaration, available at www.sahrc.org.za/afr_sec_yaounde_declaration.pdf.

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on Human Rights (KNCHR) has explicitly stated that it is obligated to protect the economic and social rights that are guaranteed by the African Charter, but not in the Kenyan Constitution.35 The KNCHR has also undertaken to ‘‘support the African Commission and the African Court on Human and Peoples’ Rights.’’36 The National Human Rights Commission of Malawi sought observer status with the African Commission during the Twenty-seventh session of the African Commission in Algiers in April 2000.37 So have its counterparts in Rwanda, Algeria, Libya, Sierra Leone, and Benin.38 To date, eleven such national commissions have been granted affiliate status at the African Commission.39 In creating their own national human rights institutions, many states parties were not simply complying with a decision of the African Commission or with the African Charter, but they were influenced to an extent by both the African Charter’s norms and the Commission’s persistent persuasion. United Nations’ efforts at ensuring that states establish such institutions and other factors cannot be ignored, but the African Commission’s efforts were an important factor at play. In this last case, as in the examples before it, activist forces have played important roles in facilitating the desired outcomes. They have done so sometimes by purveying African Charter norms within the body politic and increasing its visibility; at times by deploying that Charter creatively to enable hitherto unavailable arguments to emerge and appear more convincing; and sometimes (as in this last case) by actively encouraging domestic institutions to work with the African system and apply the African Charter. As importantly, the Commission has risen from an early position of being largely ignored by domestic institutions in states parties to a much higher stature in the eyes of these domestic bodies. This is evidence of the alteration that has occurred in the understanding of these institutions as to what attitudes serve their self-interests and what do not; as to logics of appropriate conduct; and thus as to their very identities. Despite all of this positive evidence of the African system’s direct and indirect impact on executive action within a number of African states, it 35

36 39

See the Kenya National Commission on Human Rights, Strategic Plan of Action: 2003–2008 (on file with the author) at 12. Ibid. at 16. 37 See Human Rights Watch, supra note 33, at 69. 38 Ibid. See African Commission’s Directory of National Human Rights Institutions with Affiliated Status, available at www.achpr.org/english/_info/directory_nhri_en.html.

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is important to note that the African Commission can hardly rest on its oars as yet. Clearly it is not yet ‘‘uhuru.’’40 As the intransigent behavior of the then government of Malawi in Chirwa v. Malawi41 shows, the African system is still unable to contribute as much as it could to the production of valuable correspondence with its norms and decisions within states. In that case, Vera and Orton Chirwa, who at one point had been under threat of execution, were held in very harsh detention conditions for many years despite the repeated intervention of the African Commission in their favor and much CSA work in the same direction.42 Even more importantly, while it is unrealistic to expect that an IHI such as the African system should ‘‘solve’’ these human rights problems, the less than brilliant character of the human rights scenes of many African states (as other states globally) underscores the difficult challenges that the African system must continue to grapple with. Nevertheless, the grimness of the overall reality does not take away from the fact that the African system, and its virtual network, has begun to exert a modest level of influence on executive action within a certain number of African states. In so doing, the system has begun to contribute to an ongoing but slow transformation in the sense of ‘‘appropriateness’’ held by the officials who run the executive branches of government in some African states. Where these officials previously felt that the Commission’s request to conduct on-site investigative missions within their respective countries was entirely inappropriate, they now seem to feel less strongly about opposing such missions. This is at the very least a socio-normative alteration. Similarly, the logic of appropriateness underlying certain executive actions, such as the denial of citizenship to the children of Bostwanan women married to foreigners, or the repeated deportation of Mr. Modise by Botswana, has been effectively questioned. The African system has thus helped to foster a process of modest ideational change that seems to be altering

40

41

42

I have borrowed this expression from Oginga Odinga. See A. O. Odinga, Not Yet Uhuru: The Autobiography of Oginga Odinga (New York, Hill and Wang, 1969). The term ‘‘uhuru’’ has been used to denote the goal of freedom. However, I use it here to mean ‘‘the desired goal.’’ (1996) 3 International Human Rights Report 134. See also C. A. Odinkalu, ‘‘The Individual Complaints Procedures of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’’ (1998) 8 Transnational Law and Contemporary Problems 359 at 385. See Compilation of Decisions 1994–2001, supra note 12, at 155–158.

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the self-understandings and conceptions of interest held by many of these actors. In this way, the system has modestly affected the character of executive action in certain African countries.

6.3 Impact on judicial decision-making and action The overall objective in this section is to show that the available evidence supports the proposition that due in part to the efforts made by the African system, that system has had a significant (though still very modest) impact on judicial decision-making and action within certain African states. The system has thus helped foster an appreciable and significant level of correspondence between its norms and the behavior of the courts of the relevant states. In other words, the evidence suggests that the ACHPR phenomenon can also be observed (though to a more modest extent) in certain other African countries. This is another pointer to the modest domestic promise of the African system. Here, as before, the key role that has been played by local activist forces – in this case mostly activist lawyers, CSAs, and activist judges – in facilitating such correspondence will be made palpable by the evidence. So will the various ways in which the African system has been invoked within the domestic sphere in order to produce the modest reformulations in logics of appropriateness or conceptions of interest that led to the relevant incidences of correspondence in the first place. This point is not difficult to demonstrate. As was discussed in section 6.2, in Attorney General of Botswana v. Unity Dow, the Court of Appeal of Botswana struck down a provision of the citizenship law of that country that had in effect discriminated against women.43 In coming to its decision that the said provisions were discriminatory, and therefore unconstitutional, the court relied in part on the positive effect that the African Charter must be taken to have had on the meaning of certain provisions of the Constitution of Botswana. The court assimilated the Charter through section 24 of the Interpretation Act of Botswana, which states that as an aid to the construction of an enactment a court may have regard to any relevant international treaty, agreement, or convention.44 Of note again is that the court felt able to rely on the Charter despite the fact that Botswana had not at the time

43 44

See Oloka-Onyango, supra note 4, at 63–64. See (1992) LRC (Const.) 623 at 654, 656 (per Amissah JP); and 673–79 (per Aguda JA).

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incorporated the Charter into its domestic legal order.45 It had merely signed and ratified the Charter. Here, the Charter was one key link in the chain of arguments that enabled the court to reach the progressive prowomen’s equality decision that it reached, and that eventually led to the repeal of the offensive portions of the law in question. This is a good example of the generation within states of valuable correspondence with the system’s norms and goals without direct state compliance as such. As argued in the preceding section, the invocation in this case of the African Charter by activist lawyers and judges contributed to a process in which previously unavailable arguments regarding women’s civic rights were created and rendered more convincing than they would otherwise have been in the circumstances. Here, the key driving force was the panel of activist judges who heard the case. In the Developmental Associations case,46 a case that Viljoen has reported from the Francophone jurisdiction of the Benin Republic, the Minister of the Interior had made a decree outlawing existing developmental associations whose applications for registration had been refused, and mandating that only one of such organizations were to exist in each administrative region. The Constitutional Court of Benin struck down this decree not merely because it was unconstitutional, but also because it was a violation of the freedom of association provisions in article 10 of the African Charter. As we shall see in section 6.4, the African Charter enjoys constitutional status in Benin, and as a result is superior to any conflicting domestic statute. In the Madame Bagri case,47 another unreported case that Viljoen has brought to our attention, the applicant had sued for wrongful dismissal. She invoked the right to work as guaranteed in the Constitution of Benin, as well as the guarantee of equal access to the public service that is provided for in the African Charter. The Constitutional Court of Benin considered the African Charter even though it reached the conclusion that the dismissal of the aggrieved party was constitutional. As Viljoen has noted,48 the increasing (though still as yet modest) influence of the African system within Benin’s judicial order is also illustrated by the exponential rise in the number of decisions of that country’s Constitutional Court which 45

46

See C. Beyani, ‘‘Toward a More Effective Guarantee of Women’s Rights in the African Human Rights System’’ in R. J. Cook (ed.), Human Rights of Women: National and International Perspectives (Philadelphia, University of Pennsylvania Press, 1994), pp. 294–297. See Viljoen, supra note 9, at 2. 47 Ibid. 48 Ibid. at 3.

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refer to the African Charter in order to legitimize their conclusions, as well as by the equally exponential rise in the number of cases in which laws and/or actions were found by this court to be unconstitutional, based in part on the application of the African Charter. Remarkably, of the four cases that were heard by this court in 1993, none applied the Charter,49 but of the fourteen cases that the same court decided in 1994, seven applied the African Charter, leading to findings of unconstitutionality in all but one of these seven cases.50 In all these circumstances, the insertion of the African Charter in Benin’s corpus of constitutional norms and its imaginative invocation within the courts by activist forces enabled those courts to adopt hitherto unlikely decisions as to the norms of appropriate governmental conduct. Even the insertion of the African Charter in Benin’s Constitution was attained as a result of the efforts made by the activist forces who had forced a sovereign national conference to be held in that country and had actively participated in and influenced its direction.51 As importantly, the judges themselves acted in an activist fashion in receiving and applying the Charter in the way that they did in this case. Nothing less than a broadly constructivist process was at play here. In New Patriotic Party v. IGP,52 the plaintiff, a registered opposition party, sought and was granted a police permit to hold a rally. The police subsequently withdrew the permit. The plaintiff subsequently joined other parties in organizing and conducting a peaceful demonstration against the budget. The police broke up this demonstration. Some of the demonstrators were arrested and brought to court under the Ghana Public Order Decree of 1972. A subsequent permit obtained by the plaintiff was also withdrawn. The plaintiff then sued for a declaration that key sections of the Decree (granting the Minister for the Interior power to prohibit public meetings and processions and making the holding of such activities dependent on the prior grant of police permits) were unconstitutional since they violated the right to freedom of assembly as guaranteed by the 1992 Constitution of Ghana. At least one 49 51

52

Ibid. 50 Ibid. For example, see C. Fomunyoh, ‘‘Democratization in Fits and Starts’’ (2001) 12 Journal of Democracy 37; and Democracy Coalition Project, Defending Democracy: A Global Survey of Foreign Policy Trends 1992–2002, available at www.demcoalition.org/pdf/ Benin.pdf at 1. (1993–94) 2 GLR 459 at 465. For an interesting review of this and similar cases, see J. Stevens, ‘‘Colonial Relics I: The Requirement of Permit to hold a Peaceful Assembly’’ (1997) 41 Journal of African Law 118.

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judge of the Supreme Court of Ghana relied in part on the African Charter when he agreed with the rest of the court’s decision to strike down the relevant legislation. Archer CJ, underscored the important role played by the African system in the court’s decision-making process when he stated that: Ghana is a signatory of this African Charter and Member States of the Organisation of African Unity and parties to the Charter are expected to recognize the rights, duties, and freedoms enshrined in the Charter and to undertake to adopt legislative and other measures to give effect to the rights and duties. I do not think the fact that Ghana has not passed specific legislation to give effect to the Charter, [means] the Charter cannot be relied upon. On the contrary, article 21 of our Constitution has recognized the right to assembly mentioned in article 11 of the African Charter. It follows that section 7 of the Public Order Decree, 1972 (NRCD 68) is not only inconsistent with article 21(1)(d) of our Constitution, 1992 but is also in contravention of article 11 of the African Charter on Human and Peoples’ Rights adopted by the Assembly of African Heads of State and Government in June 1981 in Nairobi, Kenya.53

Here, the African Charter proved invaluable in reinforcing the hand of at least one activist Supreme Court judge in his attempt to formulate an authoritative progressive interpretation of the relevant constitutional provision. Other judges, especially Francois J, did not express any opposition to Archer J’s reasoning here. In this way, the African system was relevant to judicial action in this case. In this way also, an alteration in understandings regarding the appropriateness of a particular legislative provision was fostered. This achievement may not have been registered at all without the facilitative role played by the local activist forces which had resisted that law in the courts. But the key ‘‘relay’’ function (in relation to the domestic invocation and utilization of the African Charter) was played in this case by the judges themselves. In a Namibian case, Kuesa v. Minister of Home Affairs,54 the applicant was a serving member of the Namibian police force. He had taken part in a panel discussion that had been broadcast on television in which issues of public concern relating to the administration of the police force were discussed. He had stated, among other things, that white officers in the command structure of the force were determined to undermine the 53 54

Ibid. at 466. See Kuesa v. Minister of Home Affairs (1993) 3 BCLR 1 (Namibian High Court).

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government’s policy of reconciliation, facilitated corruption, abused their power, and collaborated with ‘‘traitors and terrorists’’ by supplying police weapons to them. Arising from these comments, he faced a departmental hearing on a charge of contravening regulation 58(32) of the Police Regulations made under the Namibian Police Act of 1990. This Act prohibited a member of the Namibian police force from commenting unfavorably in public upon the administration of the force or any other government department, and made such conduct an offence. Even before the departmental hearing, he applied to the High Court of Namibia for an order declaring that regulation unconstitutional. The High Court applied several provisions of the African Charter, noting that since Namibia had formally ratified the Charter, those provisions were binding on Namibia, and had even become a part of its domestic laws. However, the High Court’s consideration and application of the African Charter did not in the end lead it to find in favor of the appellant. The key point that is being made here, though, is that the court found the African Charter useful. Given the historical, though waning, tendency among courts in Southern Africa not to refer to the African Charter, it is significant that this court cited the Charter at all. Upon the appellant’s appeal to it, the Supreme Court of Namibia set aside the High Court’s decision.55 However, in finding that the challenged regulation did not constitute a permissible derogation from the constitutional guarantee of freedom of expression, the Supreme Court (per Dumbutshena AJA for the court) did not make any reference to the African Charter. This lack of reference to the Charter on appeal does detract from the weight the Charter has had within Namibia’s judicial institutions. However, the weight that was attached to the African Charter in a subsequent decision of the same Supreme Court seems to balance this out. In Chairperson of the Immigration Selection Board v. Frank and another,56 the African system proved more or less significant in the reasoning process of the court (albeit in promoting what many will correctly see as a negative outcome). There, a German citizen and long-time lesbian partner of a Namibian citizen who had been denied permanent residence under the Namibian Immigration Control Act 7 of 1993 sued the government. Her claim was that the decision failed to accord her equal status with heterosexuals and violated the rights to

55

(1995) 11 BCLR 1540 (Namibian Supreme Court).

56

(2001) 3 CHRLD 179.

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freedom from discrimination and equality as guaranteed by article 13 of the Constitution of Namibia. More importantly for present purposes, she also claimed that the action of the authorities also violated her right to the protection of her family as guaranteed by article 14 of the same Constitution. She succeeded at the High Court, but failed when the matter was appealed to the Supreme Court of Namibia by the government. For our purposes here, a key aspect of the logic of the Supreme Court was that, unlike under the South African Constitution, there was no provision in the Namibian Constitution for the recognition of homosexual relationships. Consequently, so the court’s reasoning went, the lack of specific protection for homosexual relationships in the relevant provisions of the African Charter and the International Covenant on Civil and Political Rights (‘‘both of which influenced article 14 of the Constitution’’ of Namibia),57 made their interpretation of the Constitution of Namibia clearer and preferable. In the court’s own words, their decision was ‘‘reinforced by the lack of the specific protection for homosexuals in the relevant provisions of the African Charter.’’58 The point here is not, of course, that the Supreme Court was right to interpret the African Charter in this way, but that the highest court in the land explicitly and clearly acknowledged the influence that the Charter had on their decision. In these cases, the formulations of the local norms that were adopted by the relevant courts were explicitly grounded in their own interpretations of the norms of the African system (however misguided these interpretations). Here, an activist judge utilized a provision of the African Charter and drove the process through which he sought to establish correspondence between Namibia’s legal system and what he saw as a norm of the African system. As conservative as the outcome of the deployment of the African system was in this particular case, the point is simply that the African Charter played a key role in the judicial reasoning process through which the outcome was produced. Needless to say, the key driver of the process via which the African Charter was utilized was the judiciary itself. As Frans Viljoen’s pioneering work in this context ably shows, and as my own research for this book has since reconfirmed, the African Charter has also performed similar strengthening and legitimization functions in two Tanzanian cases. In Ephrahim v. Pastory, the High Court relied, in small part, on the Charter’s provisions. It felt a need to rely on the Charter in this way in its attempt to justify its decision to 57

Ibid. at 181.

58

Ibid.

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invalidate a customary law of the Haya people that prohibited a female member of the clan from alienating clan land.59 The facts of this case were that a male member of the clan of a woman who had inherited land from her father and who now wanted to sell that piece of land filed suit to stop the sale. His suit was premised on the claim that a female clan member could not alienate clan land to a person who did not belong to the clan. In offering an interpretation of the gender equality provisions of the Tanzanian Bill of Rights and Duties which protected the female clan member’s right to sell the land, the court still felt a need to seek justification for its position in part in the content of article 18 of the African Charter. This last provision prohibits discrimination on account of sex. In DPP v. Pete,60 the Court of Appeal of Tanzania, that country’s highest court, supported its decision to invalidate a provision of the Tanzanian Criminal Procedure Act of 1985 by invoking explicitly the spirit and letter of the Charter. That provision had made it extremely difficult for the courts to grant bail in certain kinds of cases. More specifically, one of the relevant provisions directed that ‘‘bail had to be denied if the Director of Public Prosecutions issued a certificate to the effect that the release of a detained person would be prejudicial’’ to national security.61 Another prohibited the grant of bail to persons charged with offences relating to firearms, etc. The court held that the provisions contravened the intention of the Tanzanian Bill of Rights and Duties as interpreted by the court. And its interpretation was based on the very sound principle that: Since our Bill of Rights and Duties was introduced into the Constitution under the Fifth Amendment in February 1985, that is, slightly over three years after Tanzania signed the Charter, and about a year after ratification, account must be taken of the Charter in interpreting our Bill of Rights and Duties.62

In these two Tanzanian cases, domestic norms in favour of gender discrimination and restrictions on liberty were altered in part because of the invocation by activist forces within Tanzania of specific norms of the African system. This lends credence to the broadly constructivist account of IHI impact within states. 59 60

61

(1990) 87 ILR 106 (Tanzanian High Court). See also Viljoen, supra note 9, at 13. (1991) LRC (Const.) 553. For an excellent comment on this case, see Viljoen, supra note 9, at 14. See ibid. 62 (1991) LRC (Const.) 553 at 565.

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In the case of Zimbabwe, at least one case has, to a modest but interesting extent, relied on the African Charter. In Chinamora v. Angwa Furnishers (Pvt) Ltd.,63 the Supreme Court of Zimbabwe dealt with the constitutionality of the law of civil imprisonment in that country. The case involved the applicant’s request for an order declaring the procedure of civil imprisonment to be in conflict with guarantees of personal liberty and prohibition of torture or inhuman treatment in the Constitution of Zimbabwe. Having concluded that, divergent as it has been, the relevant foreign case law did not offer adequate guidance to the court as to ‘‘the modern trend’’ in the relevant respect, the court turned to the relevant international human rights instruments in order to strengthen, justify, and/or legitimize its particular interpretation of the Constitution of Zimbabwe. Its view of the relevant aspect of that Constitution was that it, in effect, provided that the short-term imprisonment of a recalcitrant debt-dodger who defiantly refused to pay although able to do so would not amount to degrading treatment. The African Charter was one of the instruments that guided the court in this direction and helped the court answer its questions. In the court’s words, the African Charter ‘‘contains within its terms no provisions for freedom from civil imprisonment.’’64 This was an argumentative move that implied that since the African Charter (and other such instruments) did not prohibit the imprisonment of debtors who are able but unwilling to repay their debts, then the broadly framed provisions of the Constitution of Zimbabwe could not be interpreted in a way that prohibits it. Because local activist forces (activist lawyers and judges) reached out to and invoked the norms of the African system in virtually all of these cases, and because they did so utilizing endsmeans calculations that resulted in a subtle process of indirect IHI influence in the shaping of an authoritative logic of appropriate conduct with regard to the right to liberty of recalcitrant civil debtors, quasiconstructivists will recognize this process as supportive of their theoretical orientation. It must be noted, however, that this argument as to the important role played by the Charter in the articulation of the court’s reasoning in this case does not imply the author’s endorsement of the logic itself. What is more, as Viljoen has noted, much more marginal references to and interpretive reliance on the African Charter has also

63

(1997) 2 BCLR 189.

64

Ibid. at 13 and para. 34.

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characterized a few other judicial decisions in Tanzania, Zambia, and Zimbabwe.65 Of relevance here as well is the fact that the application of the African Charter in the decisions of the domestic courts of African states has not been as extensive or deep as it could be. For instance, Viljoen has reported at least one case in which a court in Malawi explicitly declined to apply the Charter on the mere basis that it had not been formally incorporated into the domestic laws of that country.66 For his part, Mugwanya has noted that Ugandan courts rarely draw upon any international human rights treaties, and that South African courts tend to draw more from global human rights decisions than from the African system.67 And Adjami has even gone as far as claiming that: given the choice of relying upon universalized human rights norms as enshrined in their Western expression in UN treaties and the European Convention or their particularized expression in the African Charter, the African Courts have relied more on the universal international treaties than on their regional alternative.68

What is more, the influence of the Charter on judicial action within these other African states has definitely not been as pronounced as it has been within Nigeria. Comparison of the evidence adduced here to that provided in chapter 4 makes this point most palpable. Viljoen has captured this wide gap reasonably clearly. In his considered view, with which I am in total agreement: It is ironic, but perhaps predictable, that the clearest illustration of the potential effect of the African Charter in domestic law is found in Nigeria under a military regime at a time of severe repression, especially following the nullification of the results of the elections held on 12 June 1993.69

65

66 68

69

See Munuo Ng’uni v. Judge in Charge of High Court, Arusha and another, Civil Case 3 of 1993 (unreported). See also Viljoen, supra note 9, at 15; and G. J. Naldi, ‘‘Constitutional Developments in Zimbabwe and their Compatibility with International Human Rights’’ (1991) 3 African Journal of International and Comparative Law 372. Ibid. at 6. 67 See Mugwanya, supra note 8, at 267. See M. E. Adjami, ‘‘African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?’’ (2002) 24 Michigan Journal of International Law 103 at 152 (emphasis supplied). See also L. Madhuku, ‘‘The Impact of the European Court of Human Rights in Africa: the Zimbabwean Experience’’ (1996) 8 African Journal of International and Comparative Law 932. Ibid. at 7.

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Nevertheless, the evidence discussed above clearly indicates that to an extent that I consider significant in the light of the particularly harsh historical context in which it has had to function, the African system has so far had a modest impact on judicial thought and action within a number of African states. This impact has manifested itself in the incidences of correspondence between domestic judicial action within these states (on the one hand) and the norms of the African system (on the other hand). More importantly, given its increasing domestic visibility, this system promises to be of more judicial utility in many of these states. It is, however, in the penultimate section of this chapter that the conditions for the system’s realization of its optimal promise will be specified in as much detail as possible.

6.4 Impact on legislative action What I want to do in this section is to show that although the African system’s impact on legislative debate and/or on the direction and content of legislative action within other African states (other than Nigeria and South Africa) has so far been very modest, it has been significant nevertheless.70 I want to show as well that in consequence, the system has helped foster an equally modest level of correspondence between its norms and the character of legislative action within those states. Put differently, the evidence suggests that the ACHPR phenomenon can, to a much more modest extent, be observed in the legislative behavior of certain African states. This evidence will also show that a broadly constructivist process has at times been at play in the story of IHI percolation and impact within the legislatures of certain African countries. The hands of local activist forces is in many cases clearly visible in helping produce the desired outcomes. However, it must be noted at the outset that the evidence available in the present respect is not as ample as those discussed either in the preceding sections of this chapter, or in chapter 4; hence the much more modest score awarded. As has already been noted, in response to the decision of the Court of Appeal of Botswana in the Unity Dow case, the offending provisions of 70

Given the fact that the chief objective here is to show that some significant evidence which grounds the book’s arguments exists elsewhere in Africa, the ambition of this chapter is not necessarily to offer a comprehensive survey of all the relevant developments in each and every country. As such, beyond a certain threshold (which I believe is met here) it does not really matter how many pieces of legislation are discussed.

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the citizenship law of that country were eventually amended by its Parliament.71 This is a very clear example of the way in which the African system, albeit in an indirect way, has had an impact on the direction of legislative action within a state party. Here, the court’s decision invalidating the offensive provisions relied heavily on the provisions of the African Charter and even invoked the spirit of the African system in an attempt to legitimize its progressive conclusions. Thus, to the extent that its decision had influenced the eventual repeal of the offending parts of the relevant legislation, the system cannot but be credited with some significant (if indirect) influence on the direction of the legislative changes that occurred. Here, as in other parts of this book, the argument that is being made is not at all ‘‘causational’’ in nature. The argument is that the African Charter contributed in a valuable way to this final outcome. The arguments made in section 6.2 and 6.3 regarding the constructivist character of the process of IHI influence in this case also apply here. Again, as has already been noted above, there is clear and reliable evidence in the Supreme Court of Namibia’s decision in Chairperson of the Immigration Selection Board v. Frank and another72 that the African Charter was of influence in the drafting and wording of at least one provision of the Namibian Constitution, namely its article 14. In the words of that court, the African Charter ‘‘influenced’’ that provision of the Namibian Constitution.73 This kind of explicit judicial acknowledgement of the African Charter’s legislative influence in Namibia is as rare as it is striking. As has already been shown, the character of the process via which the African system percolated and influenced thinking and action here does bear testimony to the power of the constructivist optic. In Mozambique, corporal punishment has been illegal for a long time now. And as Langa J noted in State v. Williams, a decision of the South African Constitutional Court, the abolition of corporal punishment in Mozambique was done so as to allow its laws to ‘‘correspond’’ on this issue with local perceptions of the nature of the country’s obligations under the African Charter.74 According to him ‘‘public floggings were abolished [there] in 1989 in accordance with the country’s obligations 71 72 74

See Oloka-Onyango, supra note 4, at 63. (2001) 3 CHRLD 179 at 181. 73 Ibid. See State v. Williams (1995) SACLR LEXIS 249 at para. 46 and n. 58. See also Viljoen, supra note 9, at 12.

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under the African Charter on Human and Peoples’ Rights.’’75 Here, this ban was achieved after years of campaigns by local activist forces (especially CSAs). These actors persuaded local actors as to the need for an ideational and normative alteration; purveyed the alternative imagination of punishment contained in the relevant norm of the African system, and made detailed ends-means calculations as to the value of targeting high state officials, public opinion, and the courts for dialogue and ‘‘shaming.’’ It was in this broadly constructivist way that the domestic legislation of a state party has been indelibly marked by the content and orientation of the African Charter. The Charter has also been expressly incorporated into the corpus of Benin’s domestic laws.76 Indeed, the text of the African Charter is specifically annexed to the Constitution of 11 December 1990 (Law 90-32). The Preamble to the Constitution expressly proclaims that the provisions of the African Charter make up an integral part of this present Constitution and of the domestic law of Benin, and have a value superior to the internal law. What is more, in the High Authority of Audiovisual and Communications case, the facts of which are not pertinent to the discussion here, the Constitutional Court of Benin affirmed the existing constitutional position and held that the African Charter was clearly an integral part of the 1990 Constitution of Benin.77 The annexation of the text of the African Charter to the Constitution of Benin and this decision in effect ensure that the very content and character of every other piece of legislation in that country must be affected in one way or the other by the content and orientation of the African Charter. This is a most remarkable situation for any country and any human rights treaty, and underscores the legislative promise of the African system in the context of the Republic of Benin. As has been already argued, even this very act of incorporating the Charter into the Benin Constitution was done at a sovereign national conference that was convoked and so positively oriented in large part as a result of activist forces. It was also these actors which also acted as the norm

75 76

77

See State v. Williams, ibid. at n. 58. Final Communique´ of the 16th Ordinary Session of the African Commission on Human and Peoples’ Rights at para. 28 (on file with the author). (1994) 94-001/HACC (Cour Constitutonelle). Language barriers prevent a direct citation from the text in this case. As such, I am constrained to rely on Viljoen’s interpretation. Professor Viljoen is a leading scholar of human rights in Africa. See Viljoen, supra note 9, at 3.

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entrepreneurs who successfully ‘‘sold’’ the alternative (African systemfriendly) formulations of local legislative provisions to the legislature. In Cape Verde, the African Charter now constitutes a part of its corpus of domestic laws, and more importantly is directly applicable within that country’s borders.78 Article 11 of the 1992 Constitution of Cape Verde creates a general regime that assimilates the African Charter and other such treaties.79 Moreover, as Cape Verde’s recent report to the African Commission categorically states: the African Charter has a superior position [to Cape Verde’s domestic laws]. This is because the Constitution states in article 11 that international conventions or laws override domestic laws.80

As such, it is clear that at the very least the African Charter promises to exert some influence on the content of domestic legislation within Cape Verde. The arguments above regarding the ways in which the process of change that occurred bore the hallmarks of a broadly constructivist process also apply here, with necessary adjustments. In the case of Cameroon, not only has the African Charter been ratified by that country, as a result of the provisions of section 45 of the Constitution of Cameroon, but the Charter’s provisions also have the force of law within Cameroon.81 What is more, section 45 provides that all duly ratified international agreements override domestic legislation in Cameroon.82 Additionally, as Nelson Enonchong (an authoritative commentator on the legal system of that country) has recently noted, even the Preamble to the Constitution of Cameroon affirms explicitly the formal commitment of that country to the norms enshrined in the African Charter.83 The arguments made with respect to the annexation of the African Charter to the Constitution of Benin apply here as well, with necessary modifications. It is also of some very modest interest here that, if the testimony of the representative of Egypt during the consideration of its report to the African Commission is accurate, then the African Charter’s norms may have had some influence on the process of legislative action within Egypt

78 79 80 81

82

See Viljoen, supra note 9, at 4. See Constitutional Law 01/IV/92, cited in ibid. See (1994) 16 African Commission Reports 34 (emphasis added). See N. Enonchong, ‘‘The African Charter on Human and Peoples’ Rights: Effective Remedies in Domestic Law?’’(2002) 46 Journal of African Law 197 at 199. Ibid. 83 Ibid.

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(at least with regard to the content of the Constitution). According to that report: Before Egypt ratified [the Charter] a study had been conducted to determine whether the Charter contradicted any part of the Egyptian Constitution. [The study found that] [i]t did not. If the Charter contradicted lower acts, it would override them. The only confusion that could arise would be if the Charter contradicted some act of equal rank.84

While it is not clear what the last sentence of this quotation implies about the status of the Charter within Egypt, the important point is that the Charter inspired a legislative study, commissioned by the government, designed to find out if Egypt could ratify the Charter on the basis that its Constitution did not contradict the Charter. It is also noteworthy, formalistic as it is, that that study found that the Constitution did not in fact contradict the Charter in any way. However, this does not give any definitive information regarding the compatibility of other domestic legislation with Charter norms. As importantly, this domestic invocation of the Charter in the legislative process took place within a socio-legal context that has been shaped by the fierce resistance of Egyptian CSAs to authoritarian rule. It is also noteworthy that the Initial Report of Ghana to the African Commission claimed that the provisions of the 1992 Constitution of Ghana accords with ‘‘all the requirements of the African Charter.’’85 To the extent that the report intended to convey the impression that some effort was made to ensure that this level of ‘‘correspondence’’ was achieved, and it is reasonable to deduce that this was so, it becomes apparent that the African system has exerted a measure of influence on the legislative process that produced this constitutional document. Here again, the influence that was achieved by the African system was not mostly as a result of any direct state compliance. It was rather largely as a result of the relentless invocation of the African system within Ghana’s domestic institutions; and a measure of engagement between the African system, activist forces, and domestic institutions in that country. Equally important is the fact that the African Charter now forms a part of the corpus of domestic laws, or is directly applicable within the 84

85

See The African Commission on Human and Peoples’ Rights: Examination of State Reports, 11th Session, March 1992 (Oslo, Danish Centre for Human Rights, 1995), p. 11 (on file with the author). See (1993) 13 African Commission Reports 32.

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legal orders of a number of other African states, such as Togo,86 Algeria,87 and Senegal.88 As Viljoen has observed, the available evidence suggests that the extent to which the Charter has been invoked in a particular country correlates, at least in part, with the status that the Charter enjoys in that country’s domestic legal order. I agree with this statement for the most part. Given this fact, it is regrettable that certain other states parties such as Zimbabwe89 and The Gambia90 have not incorporated the Charter into their corpus of domestic laws. In the foregoing paragraphs, I have attempted to demonstrate the contextually significant trend toward the domestic impact of the African system on the process of legislative action and on the content of legislation within some African states. In the next section, the extent of the African system’s influence on the work of some of the local CSAs which operate within some African states will be discussed. As important as these CSAs have been to the process via which the African system’s norms have percolated into the domestic governmental institutions of some states, these activities of groups themselves have in many cases also been influenced by the African system.

6.5 Impact on the activities of civil society actors The chief objective of this section is to show that the African system has begun to exert a measure of influence on the work of some of the activist forces that operate within certain African states. As these activist forces have as a group been one of the most critical factors in the generation of the kinds of valuable correspondence that has been evident in relation to the African system’s relationship with some of these states, this inquiry is quite important. Since the role of local activist forces in the production of correspondence in the relevant states has already been much discussed above, the current discussion of the impact that the African system has had on the work of these activist forces themselves (the intelligent relays of its normative energy) will of necessity be very brief. It will serve only to highlight this role.

86

87 89 90

See U. O. Umozurike, The African Charter on Human and Peoples’ Rights (The Hague, Martinus Nijhoff, 1997), p. 110. See Viljoen, supra note 9, at 2. 88 Ibid. at 11. See (1995) 17 African Commission Reports 18. See (1992) 12 African Commission Reports 7.

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As has been argued throughout this book, the relevant activist forces have worked as the ‘‘virtual network’’ partners of the African system, and have been as important as the African system in the generation of ‘‘correspondence’’ between the system’s norms and goals, and the content and orientation of executive, judicial, and legislative action within the relevant states. The broadly constructivist process via which modest alterations in logics of appropriateness and/or conceptions of interest have been fostered in the relevant states have in nearly every case been brokered and/or facilitated by these activist forces (be they activist lawyers, CSAs, or activist judges). Again, it must be noted that the evidence that I rely on here is much sparser than that offered in my discussion (in chapters 4 and 5) of the influence of the African system on the work of activist forces within Nigeria. Regardless of the relative sparseness of the relevant evidence, the modest impact of the African system on the work of these activist forces (these activist lawyers, CSAs, judges, etc.) can be illustrated. Most of the examples offered will be teased out from the discussions in previous sections of this chapter. For one, in some of these other countries, activist lawyers have brought cases in which they have hinged their arguments either on the African Charter itself, or on a decision of the African Commission.91 Indeed, as Viljoen has noted, the frequency and innovativeness of the use of the Charter by domestic courts is closely linked to the initiative of local activist lawyers in making Charter-based arguments before such courts.92 In Concerned Parents and Teachers Associations v. Morning Star Preparatory School and eight others, the Minister for Education and the Attorney General,93 a case that was heard before the High Court of Ghana, Accra, the plaintiff was an incorporated ‘‘non-profit’’ group which was concerned by the negative effect that unregulated school fees in private schools in Ghana was having on the accessibility of basic education to the children of ordinary citizens in Ghana. Counsel relied deliberately on the African Charter and on one other international instrument in order to formulate and bring a somewhat novel and creative suit challenging the legality of the arbitrarily imposed and extremely expensive fees charged by private schools in Ghana. Counsel relied in part on the Charter as a way of complementing and 91 93

See Viljoen, supra note 9, at 17. 92 Ibid. Reported extensively in J. K. M. Premo, ‘‘Litigating Educational Rights in Ghana: The Need for Action’’ (1998) 10 ASICL Proceedings 89 at 95–101 (especially at 97).

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invigorating the available constitutional and statutory arguments. The facts of the case are sufficient to illustrate the point that is sought to be made here regarding the domestic uses to which local counsel have been able to put the African Charter. The invocation of the Charter allowed activist lawyers to formulate, present as authoritative, and enhance the persuasiveness of, alternative formulations of the ‘‘right’’ domestic norm that ought to guide the decision in the case. Secondly, CSA cadres have deployed the Charter in similar ways.94 In the Modise case, the petitioner was able to obtain substantial, if partial, relief from the Government of Botswana in part as a result of the efforts of INTERIGHTS and other CSAs. Chidi Odinkalu, then a senior legal officer at this organization, had brought a Communication before the African Commission alleging that Botswana had violated several provisions of the Charter. Due to the direct and persistent intervention of the Commission and the tireless activist work of this CSA, Botswana eventually granted Mr. Modise a substantial part of the remedies that he desired. Indeed, it was as a result of INTERIGHTS’ subsequent application that this case was reopened recently by the Commission, and decided in favor of Mr. Modise. The Commission granted his relief in full and urged Botswana to grant him citizenship by descent rather then the partial remedy of naturalized citizenship that Botswana had conceded earlier. While INTERIGHTS is not a Botswanan group, it does from time to time work with local groups in the way shown above. As importantly, as the discussion in section 6.3 shows, many activist judges (themselves a part of the network of activist forces that help produce the kind of correspondence that is of concern in this book) have relied on these Charter-based arguments to justify and legitimize their constitutional decisions.95 As the decisions in which judges have done so have been discussed already in section 6.3, they will not be re-iterated here. Suffice it to refer the reader to cases like Attorney General of Botswana v. Unity Dow; New Patriotic Party v. IGP; Kuesa v. Minister of Home Affairs; and DPP v. Pete. It is also quite interesting that, as Ankumah has noted, the promotional visit of a member of the African Commission to Ghana was part of the stimuli for the creation of the Ghana Committee on Human and Peoples’ Rights, a local human rights CSA.96 94 95 96

See, e.g., the Modise case, supra note 11. For instance, see the Unity Dow case, supra note 9. See Ankumah, supra note 20, at 21.

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However, the efforts of these activist forces to deploy and mobilize the African Charter within these states have not always been met with success. For instance, a member of the African Commission from Congo (Brazzaville) has lamented that on the occasions when she has, as counsel in cases before the domestic courts, invoked certain provisions of the Charter, the judges have ignored these provisions in reaching their decisions.97 This parallel trend is disturbing, given the rapidly increasing, (but still relatively low) level of awareness among African judges, lawyers, and general populations, regarding the nature of the norms and processes of the African system. As the discussion in the previous sections might suggest, and as will be clear from the following section, it is likely that the growing trend toward the deployment of the African system by activist forces within the domestic context of African states will continue. The momentum is certainly in that direction. As will be palpable from our analytical discussion in chapter 7, this trend may present the best chance for the maximization of the potential for the widespread social utility of the African system.98

6.6 Specifying the conditions for the optimization of the domestic impact of the African system Under what broad conditions did the African system modestly help shape and/or reshape the logics of appropriateness, conceptions of interest, and self-understandings held within key domestic institutions within the relevant African states? What factors have combined to facilitate the modest influence of the African system within Nigeria and South Africa; and to produce the kinds of broadly constructivist results that have been suggested above? The broad specification of these factors will be the main focus of this section of the book. But first some introductory points must be made. First of all, it should be reasonably clear thus far that the African system is better imagined and assessed in the context of its increasing (though still modest) integration with the domestic legal systems of the fifty-three African countries that are party to its work. As such, Odinkalu’s recent plea that the African system should no longer be 97 98

See Viljoen, supra note 9, at 5. The proposition that this conclusion can apply to other IHIs is supported by the results of an excellent study of United Nations treaty regimes that was undertaken by Cristof Heyns and Frans Viljoen. See Heyns and Viljoen, supra note 1.

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imagined as largely separated from these national legal systems is convincing.99 Consequently, the examination, in this section, of the conditions for the optimization of the domestic impact of the African system (and thus, of the ACHPR phenomenon) will deal as much with domestic factors as it will be concerned with the African system itself. To borrow from Solomon Ukhuegbe, in my own view, the credit for the modest influence that the African system has achieved, as well as the discredit for its failure to achieve much more of such influence, belongs to both ‘‘the seed [that is the African system] and the [infertile or] fertile soil [that is the relevant states].’’100 It is important, at the outset, to underscore the unevenness of the African system’s impact within the domestic setting of African states. This should be evident from the discussion in this chapter and the ones before it. For instance, it should be quite clear that the African system’s influence within Nigeria has, at least in terms of its profoundness, outpaced its impact within any other African country. It is also important to note, as Viljoen already has, that the courts of Southern African countries have tended to refer more to the European rather than the African system.101 Mugwanya has reached a similar conclusion with respect to the citation practices of South African and Ugandan courts.102 This point was also made at length in chapter 5. One reason that this is an interesting puzzle is that the constitutions of a number of Southern African countries such as Namibia and South Africa empower their courts to apply international law.103 What is more, the courts of this region have been one of the most inclined in Africa towards transjudicialism. Judicial decisions in this region are replete with citations of foreign domestic and international resources.104 The situation of 99

100 101 103

104

See C. A. Odinkalu, ‘‘Back to the Future: The Imperative of Prioritizing for the Protection of Human Rights in Africa’’ (2003) 47 Journal of African Law 1 at 22. See S. Ukhuegbe, Memo No. 1 (on file with the author) at 4. See Viljoen, supra note 9, at 16. 102 See Mugwanya, supra note 8, at 267. See Ukhuegbe, supra note 100, at 5. I must acknowledge the debt I owe to Solomon Ukhuegbe for helping to concentrate my mind on many of the questions raised in the first three paragraphs of this section. I have incorporated some text from his memo to me on these issues into this section of the chapter. Solomon Ukhuegbe’s search of Butterworths Constitutional Law Reports (Southern African cases) on the LEXIS database revealed that in Southern African countries, the most frequently cited non-local sources are decisions of the US Supreme Court, the Supreme Court of Canada, and the European Court of Human Rights, in that order. The Canadian Charter of Rights and Freedoms and the European Convention were the most cited instruments. See ibid. at 4.

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Zimbabwe (another Southern African country) is as interesting. Former Chief Justice Anthony Gubbay was a great enthusiast of trans-judicialism, especially in terms of the use of international law in decision-making. He advocated that all international and regional instruments embodying human rights norms broadly accepted by the international community, even if unratified by Zimbabwe, should be incorporated into domestic jurisprudence by judicial interpretation.105 Why then has the African Charter not been deployed much more often within Zimbabwe? While the foregoing points do underscore the diversity of attitudes about the African system across African countries, it does not then follow that Mirna Adjami’s suggestion that all ‘‘African courts have relied more on universal international treaties than their regional alternative [the African Charter]’’ is entirely accurate.106 That claim is significantly overbroad. While it is an accurate description of the situation in much of Southern and Eastern Africa, there is just no evidence that this is an accurate reflection of the situation in most of Western and Northern Africa. At the very least, it is hardly plausible to make that claim with respect to Nigeria, the country that accounts for nearly 20 percent of the engagement of all African countries with the African system and in which the domestic invocation of the African Charter has become nearly routine in human rights cases. As it turns out, that claim does not also pan out entirely in relation to the behavior of the courts in the Benin Republic. This section is devoted to the task of shedding as much light as possible on these and related puzzles. Why, it will be asked, have certain African states been more receptive to the influence of the African system than others? Why, for instance, has the influence of the African system been much more appreciable in a Nigeria that has been mostly ruled by military regimes,107 than in Botswana, a country that is best known for its status as Africa’s most stable liberal democracy, and which has had a long tradition of judicial activism?108 Why do the courts of Southern 105

106 107

108

See A. R. Gubbay, ‘‘The Protection and Enforcement of Fundamental Human Rights: The Zimbabwean Experience’’ (1997) 19 Human Rights Quarterly 227 at 233. See Adjami, supra note 68, at 152. See A. Olutokun, ‘‘Authoritarian State, Crisis of Democratization and the Underground Media in Nigeria’’ (2002) 101 African Affairs 317 at 317–318. On Botswana’s democratic credentials, see K. Good, ‘‘Interpreting the Exceptionality of Botswana’’ (1992) 30 Journal of Modern African Studies 69. Indeed, in Unity Dow, Aguda JA stated that ‘‘I wish to take judicial notice of that which is known the world over that Botswana is one of the few countries in Africa where liberal democracy has taken

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Africa not deploy the African Charter as frequently as they cite to European and North American sources? Why doesn’t the African Charter come within their radar more often?109 Why do their Nigerian counterparts cite the African Charter with far more frequency? What factors have tended to enable the African system to exert such influence? What factors have tended to militate against its exertion of such influence? How then can the African system’s influence within the domestic sphere of most African states be optimized? While not every one of these questions can be answered in a book such as this, most will be addressed in this section. I shall now attempt to provide as many answers to these questions as are possible by offering an analytical discussion of both the domestic and African system-specific factors that have affected the capacity of the African system to achieve influence within African states. Thereafter, I will attempt to specify as accurately as possible the minimum conditions for optimizing the domestic promise of the African system (and thus for realizing more fully the benefits of the ACHPR phenomenon). Previous analyses in chapters 4 and 5 will shape the discussion here.

6.6.1 Domestic factors An analysis of the evidence adduced in chapters 4 and 5 reveals that one of the critically important factors that has enabled or impeded the African system’s ability to exert influence within the domestic sphere of any African state is the extent to which the local activist forces (especially its CSAs) which operate in a state have been dynamic, creative, courageous, and therefore strong. The less strong the relevant CSA community has been, the less influence the African system has tended to exert within the relevant countries. This is one important reason why the African system has been much more influential within mostly military-ruled Nigeria than in consistently liberal democratic Botswana. Nigeria’s CSAs are widely acknowledged to be one of the strongest on the continent,110 while the CSAs in Botswana have been

109 110

root.’’ (1992) LRC (Const.) 623 at 670 (emphasis added). Also reported in 103 ILR 128 at 175. On the age-old activist tradition of the courts of Botswana, see A. J. G. M. Sanders, ‘‘Constitutionalism in Botswana: A Valiant Attempt at Judicial Activism’’ (1983) XVI CILSA 350 (Part I) and (1984) XVII CILSA 49 (Part II). See Ukhuegbe, supra note 100, at 4. See P. O. Agbese, ‘‘The State versus Human Rights Advocates in Africa: The Case of Nigeria’’ in E. McCarthy-Arnolds, D. R. Penna, and D. J. Cruz Sobrepena (eds.), Africa, Human Rights and the Global System: The Political Economy of Human Rights in a

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much weaker.111 Almost nowhere else on the continent, except perhaps for South Africa, have local CSAs been as dynamic, creative, and courageous, and therefore as strong as their Nigerian counterparts.112 Nigerian and South African CSAs are in turn far stronger than any other CSA community on the continent. It follows logically, therefore, that factors that tend to increase the strength of CSAs are important in understanding the factors that can facilitate the domestic influence of the African system. As I have shown in a recent article on the situation of CSAs in Nigeria, these factors relate mostly to the preconditions for those CSAs becoming popularly legitimized, and therefore much more politically powerful, groups.113 However, it is important to keep in mind that, critical as it is, the strength of the relevant CSAs is not by itself wholly explanatory of the extent to which the African system has exerted influence within a given African country. For one, the relevant CSAs may not have turned their attention enough to the deployment of the African system within the relevant country. For example, South African CSAs have been at least as strong as their Nigerian counterparts, yet the African system has not exerted nearly as much influence in South Africa as it has in Nigeria. This particular counterfactual is explained to a large extent below. What is more, it does not follow that once the relevant CSAs are strong, the relevant domestic institutions will automatically agree with their arguments or act in the ways that the CSAs suggest. Other factors are important as well, however less influential those factors might be. The point here is that, as the evidence provided in chapters 4 and 5 suggest, the presence of strong CSAs (where ‘‘CSA strength’’ is understood in the particular way in which it has been used at the beginning of this paragraph) vastly increases the likelihood that the African system will exert an appreciable degree of influence within an African state. And as we shall see later on in this section, this factor seems

111

112

113

Changing World (Westport, Conn., Greenwood Press, 1994), p. 167. See also O. C. Okafor, Legitimizing Human Rights NGOs: Lessons from Nigeria (Trenton, New Jersey, Africa World Press, 2006). See P. Molutsi and J. D. Holm, ‘‘Developing Democracy when Civil Society is Weak: The Case of Botswana’’ (1990) 89 African Affairs 323; and P. Takirambudde, ‘‘Botswana’’ in P. Baehr, H. Hey, J. Smith, and T. Swineheart (eds.), Human Rights in Developing Countries (The Hague, Kluwer, 1995). See, e.g., T. Shaw, ‘‘Africa in the New World Order: Marginal and/or Central?’’ in A. Adedeji (ed.), Africa Within the World (London, Zed Books, 1993), pp. 91–92. See O. C. Okafor, ‘‘Modest Harvests: On the Significant (but Limited) Impact of Human Rights NGOs on Legislative and Executive Behaviour in Nigeria’’ (2004) 48 Journal of African Law 23 at 45–48.

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to be more important than the political regime-type of the country. However, these last two factors are positively linked to some extent. A related factor is the extent to which these CSAs have actively engaged with the institutions of the African system. More active engagement with the African system (measured here in terms of cases filed at the African Commission) tends to correlate with the presence of stronger CSAs in the particular country and with the greater incidence of the deployment of the African Charter within the domestic institutions of African states. Strong as they have been, South African CSAs only emerged from the Apartheid era in the mid-1990s, and did not really begin to engage with the African system till the late 1990s and early 2000s. Indeed, as at the end of 2001, the African Commission had not decided a single case from South Africa!114 As has been shown in the last chapter, it was only in late 2005 that the very first such case, the Garreth Prince case, was decided. In contrast, Nigerian CSAs have brought almost 20 percent of all the cases that have been decided by that Commission.115 As such, the relatively much sparser influence of the African system within South Africa, despite the presence there of strong CSAs, is explained in part by the very low level of engagement that most South African CSAs have had with the African system. Part of the explanation for the relative lack of engagement with the African system of South African CSAs may lie in the very long and deep isolation from the rest of the African continent which South Africa suffered during the Apartheid era. What is more, as at 2001, the only case at the African Commission that had originated from Botswana was the Modise case. Even then, that case was filed and primarily driven by INTERIGHTS, a London-based CSA. It was not filed by Botswana-based CSAs.116 Over the same 1987–2001 period, the engagement of other CSAs from other African countries with the African system has almost always been as sparse, ranging from the filing of zero to four cases at the African Commission.117 This situation has not changed significantly. Another proxy for ‘‘measuring’’ the extent to which these CSAs have actively engaged with the institutions of the African system is to count the number of local CSAs from a particular country that have been granted observer status at the African Commission. As we saw in chapter 5, in contrast to Nigeria’s large and dynamic group of CSAs with observer status at the African Commission (twenty or so in number), 114 115

See Compilation of Decisions 1994–2001, supra note 12, at i–vii. Ibid. at 192–310. 116 Ibid. at 17–23. 117 Ibid. at i–vii.

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as at March 2006 only eleven South African CSAs enjoyed this important access to the inner workings of the African system. What is more, just two years earlier (that is as at 2003) only nine South African CSAs had been granted observer status as compared to Nigeria’s eighteen. Thus, at both watermarks, the Nigerian delegation was basically double the size of the South African group. Yet the total number of the local CSAs that operate in Nigeria does not appear to outnumber the total number of their South African counterparts. Similarly, even liberal democratic Botswana does not come close to matching either South Africa or Nigeria in the size and dynamism of its group of CSAs with observer status. The size of their delegations to the African Commission of CSAs with observer status has also tended to be relatively small.118 For example, as at March 2006, there were only eleven Egyptian, nine Senegalese, nine Gambian, seven Beninoise, five Togolese, five Kenyan, four Ivorian, three Ghanaian CSAs which had been granted observer status by the Commission.119 Less impressively, there was only one Tunisian and one Botswanan CSA among this number!120 Thus, even the largest of these other delegations are about twice as small as the Nigerian group. It could, of course, be argued that Nigeria has a much larger population than any other African country and should as such have a correspondingly much larger delegation of CSA observers. This is a reasonable supposition. However, the size of a country’s CSA population often has less to do with the sheer size of its general population, and more to do with other social factors such as a history of resistance to military rule or Apartheid, local culture, the availability of foreign donors, and the existence of sufficient space for socio-political activism within it.121 As such, it is not necessarily true that the relatively large size of the Nigerian CSA delegation at the African Commission is simply due to that country’s disproportionately large share of Africa’s population. The main point here is that if these CSAs as a group function as one of the key brainy relays that transmit the African system’s normative energy into 118

119 121

See also List of Organizations Granted Observer Status with the African Commission (June 2003) (on file with the author); Directory of NGOs with Observer Status at the African Commission, 2004, available at www.achpr.org/english/info/directory_ngo_en. html; Status of Submission of NGO Activist Reports, October 2005 (on file with the author); and Final Communique´of the 38th Ordinary Session of the African Commission, Banjul, The Gambia, 21 November–5 December 2005, available at www.achpr.org/ english/communiques/communique38_en.htm at 2. See List of Organizations, supra note 118. 120 Ibid. For some of these factors, see Okafor, supra note 113, at 43–45.

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the domestic sphere, then Nigeria had many more such brainy relays, hence the much more profound results in its case. Another related factor has been the extent to which domestic governmental institutions in the given African country have actually established lines of communication (and thus connections) with the African system as a result of the activities of the relevant activist forces (especially activist judges and CSAs). Since activist forces have been the primary intelligent transmission-lines between the African system and domestic institutions in Africa, it follows that the more ably the relevant CSAs have performed this facilitative function, the more considerable the African system’s domestic influence has been. As the records of cases filed at the African Commission show, CSAs have performed this function to a far greater extent in Nigeria than in any other African country. This has greatly facilitated the more appreciable influence that the African system has exerted within Nigeria. CSAs have not performed this function nearly as successfully in South Africa, Botswana, Uganda, Zimbabwe, Benin, Tanzania, Namibia, the Congo (Kinshasa), Algeria, Togo, Ghana, Zimbabwe, Cameroon, and virtually any other African country. This fact is confirmed by Oloka-Onyango’s observation that ‘‘African human rights organizations have only recently woken up to the necessity to deploy the mechanisms of the Banjul Charter to productive domestic use.’’122 This situation has contributed greatly to the much more modest extent of the African system’s impact within these countries. In the South African and Namibian cases, the long and deep isolation from the rest of Africa which those countries suffered as a result of Apartheid in South Africa and South Africa’s harsh colonial rule in Namibia may partly explain the relative (though narrowing) distance between their domestic institutions and the African system. The relative weakness of the CSA sector in most African countries123 is partly explanatory of the failure of most such CSAs to play the kind of facilitative role discussed here. Another important factor, one that has been noted above, is the extent to which key domestic constituencies (such as the general public) have been made aware of the existence, character, and relevance of the 122

123

See J. Oloka-Onyango, ‘‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa’’ (1995) 26 California Western International Law Journal 1 at 56. See also J. Oloka-Onyango, ‘‘Human Rights Activism in Africa: A Frog’s Eye View’’ (1997) Codesria Bulletin No 1. See Shaw, supra note 112.

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African system (and of each of its components). For instance, four years after the inauguration of the African Commission in 1987, Ellen Sirleaf of Liberia had observed that the system was generally unknown and invisible in that country.124 There is no evidence that the situation has improved a great deal since then. In the case of Sierra Leone, a survey undertaken by Rhoda Kargbo in December 2003 indicated a similarly low level of awareness of the African system in that country.125 Similarly, Kairaitu Murungi had observed at the same time that few ordinary people in Kenya had heard about the African Commission,126 and Patrick Tigere has come to a similar conclusion with respect to Zimbabwe.127 While some of these assessments are very much dated, they remain somewhat relevant. As recently as 1999, Florence Butegwa had returned a similar and even more worrisome verdict. In her view, the majority of women’s grassroots groups did not include the African Charter and Commission in the legal rights awareness programs that they currently implemented. While the basis for such a continent-wide conclusion seems challenged a little bit by the evidence from Nigeria that is adduced in this book, her conclusions are very disturbing nevertheless. To the extent that Butegwa’s conclusion is accurate, it reflects a failure on the part of the CSAs (who have been the vanguards of the movement for the actualization of the African system’s goals) in helping to disseminate and popularize the African system, and thus to take the African system ‘‘home.’’ It also reflects the relatively low literacy levels among the general population in many African states and the relative absence of the Charter, despite efforts in that regard, from the educational curriculum of many such states (including Nigeria and South Africa). However, the growing awareness of the system gives cause for some mild cheer.128 Another factor which has affected the level of influence that the African system has exerted within a given African state is the extent to which the local courts (and sometimes, other domestic institutions) have actively identified with the human rights struggles waged by the relevant CSAs as well as with the progressive norms of the African system. In other words, it is dependent on the extent to which the 124

125 127

128

See Proceedings of the Conference on the African Commission, June 24–26, 1991 (Fund for Peace 3/26/93 MDF) (on file with the author) at 27. See R. Kargbo, Memo to the author (on file with the author). 126 Ibid. See P. Tigere, ‘‘State Reporting to the African Commission: The Case of Zimbabwe’’ (1994) Journal of African Law 64 at 65. See Viljoen, supra note 9, at 16.

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particular court system has been activist. In countries such as Nigeria, Botswana, South Africa, Benin, and Namibia, with a relatively deep tradition of judicial activism (at least on the part of a significant wing of the judiciary), the African system has tended to have appreciable, although uneven, impact on some key decisions of the relevant courts. Given the fact that it is often the courts that serve as the primary guardians of human rights, the degree to which an activist judiciary that identifies both with the pro-human rights struggles of CSAs and with the norms of the African system is present in a given country seems to be a critical factor that has facilitated or impeded the African system’s domestic impact. This is not to say, of course, that the presence in a given African country of an activist judiciary is sufficient on its own to endow the African system with an appreciable level of influence within that domestic context. A number of other factors do matter as well. A related factor is the level of independence enjoyed by the courts of a given African country. While the continent-wide record of judicial independence is not on balance considered by most observers to be a brilliant one,129 it is much brighter in some countries than it is in others. Numerous examples of the remarkable judicial courage and independence displayed by Nigerian judges, under harsh political conditions, have been discussed in chapter 4. The courts in South Africa (especially post-Apartheid), Botswana, Namibia, Ghana, and Benin have also displayed such independence and courage. And even in Cameroon, where the record of judicial independence has not been as significant, Enonchong has reported a case that indicates the extent to which, under more or less harsh conditions, judges in countries like Cameroon, Uganda, and Togo have also displayed the courage that was needed to redress many a violation of human rights.130 Thus, it is an undeniable fact that many judges in many African countries have risked career and even life in the course of deciding against authoritarian regimes, and even in sensitive human rights cases. Such courage and personal independence is often a precondition for judicial activism. And, as has just been noted, such judicial activism is a critical condition for the optimal impact of the African system within virtually every African state. It also appears that the extent to which the African Charter in itself forms a part of the domestic laws of a given state has been an important factor in the ability of the African system to achieve appreciable impact in at least a few African countries. The domestication of the African Charter in Nigeria, it will be recalled, was a key factor that enabled local 129

See Enonchong, supra note 81, at 213 and 214–215.

130

Ibid.

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courts to apply it in the first place. In Benin, the fact that the African Charter is annexed to and forms a part of the Constitution of that country (what Ukhuegbe refers to as its ‘‘super-domestication’’),131 has proven quite material in the increasing reliance of its courts on that document. The Charter also forms a part of the domestic laws of Togo, Algeria, and Senegal, leading in some measure to its application domestically. However, the fact that the African Charter forms a part of the domestic laws of Cameroon does not seem, as Enonchong has noted, to have had a significant impact so far in that country.132 Also relevant here is the fact that, with the possible exception of the Cameroonian example (where the incorporation of the African Charter into its Constitution does not seem to have led to its increased domestic use), clauses that specifically incorporate the text of the African Charter into domestic law have functioned positively in aid of the African system’s domestic impact. Such domestic incorporation is especially important, since local courts primarily apply local law.133 Regrettably, the kind of general clauses which are contained in the Constitutions of South Africa, Botswana, Kenya, and some other African states, that allow their courts to apply international law as interpretive tools (without formally domesticating these instruments) do not seem to have achieved as much result as they could have with regard to the African Charter. However, as the discussion in chapter 5 of the growing use of the African Charter in South African judicial decisions shows, such clauses can be very useful nevertheless. On the other hand, it does appear that since the African system has had more appreciable impact within South Africa than within most of the countries that have already domesticated the Charter, this factor does not (on its own) determine whether or not the African system will have an appreciable impact in any country. Many factors combine to shape that outcome. It seems as well that the higher the status of the Charter in the domestic legal order of a given country, the more likely it will be invoked in the domestic context of most African states.134 Perhaps the most startling analytical result in the present respect is that the evidence does suggest that the receptiveness of a given African country to the African system’s influence (that is, the possibility of the ACHPR phenomenon occurring there) is not necessarily determined by its status as a liberal democracy. Ordinarily, one would expect to find 131 133

See Ukhuegbe, supra note 100, at 8. 132 See Enonchong, supra note 81, at 199. See Viljoen, supra note 9, at 16. 134 Ibid. at 2.

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that the more established the liberal democratic credentials of a given African country are, the more influence the African system would have had within it. Yet that expectation is not largely borne out by the evidence. If it were, the African system would have exerted its most influence within Botswana (Africa’s most established and most deeply formed liberal democracy),135 rather than within Nigeria (one of the African countries which has been most marked and marred by military rule) or South Africa (which suffered Apartheid and colonial rule for 300 years or so).136 This is not to argue, of course, that domestic democratization has not mattered to the process by which the African system has acquired modest influence within certain African states. For example, in post-Apartheid South Africa, and in Botswana, Benin, Namibia, Ghana, and Mali, the democratic character of domestic institutions clearly facilitated the African system’s modest influence within those countries. In the case of South Africa, the African system had virtually no influence there before its current democratic order was established in the mid-1990s. In Benin as well, the impact of the African system dates from about the same time as its democratic reforms. Yet, in the key Nigerian case, such influence was achieved in spite of the absence of liberal democracy for most of the relevant years. It could be argued, of course, that even in the Nigerian case, the presence of democratic institutions may have helped the African system achieve even more influence in that country. That much is conceded in part. Suffice it to point out, nevertheless, that it is in Nigeria that the African system has so far recorded its most profound impact. The point is that the key Nigerian case indicates that given the coincidence of other factors (such as strong CSAs, the active concern of the African Commission, and activist judges) the ACHPR phenomenon is still achievable under less-than-democratic conditions. This is a remarkable finding indeed. However, it is important to keep in mind the fact that domestic regimetype (which is not the same as measuring democracy) does matter nevertheless. The more operational space that a particular regime-type affords activist forces (activist lawyers, CSAs, judges, journalists, etc.), the stronger these activist forces are likely to be. And the stronger these 135 136

See Good, supra note 108. On the nature of military rule in Nigeria, see A. Olukotun, ‘‘Authoritarian State, Crisis of Democratisation and the Underground Media in Nigeria’’ (2002) 101 African Affairs 317. On the nature of the Apartheid regime in South Africa, see the First Periodic Report of South Africa to the African Commission, 2001, submitted in November 2005 (on file with the author).

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activist forces are, the more likely they will be able to facilitate the African system’s influence within the given state. That much is evident from chapters 4 and 5. Here again, the Nigerian case is particularly illustrative. There, for almost all of the relevant years, the coincidence of a long and deep tradition of judicial activism among an important section of the judiciary; relatively strong CSAs; deep and long CSA engagement with the African system; domestic incorporation of the African Charter; and a peculiarly less-than-democratic but constantly negotiated regime-type that afforded some space for a measure of dissent, sufficed to generate the highest level of influence exerted so far by the African system anywhere on the continent. As is generally recognized, repressive as they mostly were, almost all of Nigeria’s ruling military juntas adopted a relatively consensual governing format that allowed for a measure of political dissent.137 They had to adopt this format in order to build alliances, appear people-oriented, garner a measure of popular acceptance, and therefore survive in Nigeria’s deeply cleavaged and peculiarly complex ethno-political environment.138

6.6.2 African system-specific factors One of the most important factors which has affected the ability of the African system to exert influence within African states is the extent to which it has actively and positively identified with the human rights struggles that rage within African states.139 The more it has been able to do so, the more it has contributed to whatever impact it has had within the given country. The deep and sustained concern that was shown by the African Commission in the Modise case (from Botswana), the Lekwot, Newspapers Registration, and Ogoni cases (from Nigeria), and in many other such cases, did mostly yield fruit. Yet, even the effect of this factor is dependent to an extent on the facilitative role of activist forces. Oloka-Onyango has put this point so well in relation to the African system’s influence in Nigeria that the relevant passage bears reproduction here. According to him: On its part, the African Commission had already demonstrated an increasing concern about developments in Nigeria. That concern was spurred by several petitions filed by Nigerian civil society actors challenging the laws passed or

137 139

Ibid. 138 See Okafor, supra note 113, at 45. See Oloka-Onyango, supra note 6, at 5 and 22.

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actions committed by the Nigerian government and highlighting the general deterioration of the human rights situation in the country. The [positive] attitude of the African Commission towards petitions from Nigeria must also have played a part in encouraging more of them to be filed.140

Should the evidence in chapters 4 and 5 not suffice to demonstrate this point, the African Commission has itself confirmed its active and positive concern about the human rights situation throughout the African continent. In its recent decision in Social and Economic Rights Action Centre and Centre for Economic and Social Rights v. Nigeria,141 the Commission declared that: The uniqueness of the African situation and the special qualities of the African Charter on Human and Peoples’ Rights impose upon the African Commission an important task . . . [the Commission] welcomes the opportunity to make clear that there is no right in the African Charter that cannot be made effective.142

Should the Commission continue to think and act in this way, should it continue so positively to identify as a part of the virtual human rights network in Africa that is described elsewhere in this book, it will be more likely to optimize its influence within the domestic spheres of many African states. Another factor that has affected the ability of the African system to exert influence within African states is the extent to which it has made a really sustained effort to create awareness about its existence, resources, and activities. The more it has done this, the more it has contributed to the effort of activist forces to create or raise awareness as to its usefulness within the relevant states. For instance, as already discussed in this chapter, its intercessional visit to Ghana helped raise awareness there and even led to the establishment of a local CSA. As shown in chapter 4, its mission to Nigeria also generated much discussion there. However, it must be noted that the African system is still far less visible than it could be within the relevant states, especially among the rank and file of the African citizenry. The slowly increasing visibility of the African Commission and the increasing use of the Charter in domestic courts is therefore a most welcome development.143 Its attempt, in a resolution passed at its Nineteenth Session, to encourage judges and lawyers in 140 143

Ibid. at 5. 141 Communication 155/96, supra note 5. See Viljoen, supra note 9, at 16.

142

Ibid. at 71.

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Africa to increase their utilization of its jurisprudence and the provisions of the African Charter in their own decisions and work is similarly commendable.144 Activists who do not know of the African system’s existence or the creative uses to which it could be put are unlikely to use it at all, or to use it effectively. And while the dissemination of information regarding the African Commission’s existence and utility has so far been mostly undertaken by CSAs, an increased contribution in that regard by the Commission will be an additional benefit. Another such important factor relates to how seriously the African Charter and Commission have been taken by the members of key domestic institutions and CSAs. When the relevant domestic actors have taken the African system seriously enough, it has been able to exert more influence within the given state. While its record in this regard has clearly been sub-optimal, the discussions in chapters 4 and 5 show that the system (or one or more of its constituents) has been viewed with some seriousness in many cases and situations. States have definitely cared to some extent about how they are affected by the pronouncements of the Commission and how the Charter is used within their domestic spheres. For example, the Nigerian government cared very much about the series of resolutions passed by the Commission condemning one or more of its actions.145 It also cared about the many cases that were decided against it at the Commission.146 And it has also been concerned about the effective uses to which the Charter has been put in its own domestic courts.147 Botswana has, on occasion, also taken the African system seriously. It did so in the Modise case, as well as in Unity Dow. These cases have already been discussed elsewhere in this chapter. What is more, the African system has been taken most seriously by a remarkably large number of African CSAs. Although CSA participation in the African Commission’s activities is not evenly distributed 144

145

146

147

See Resolution on the Role of Lawyers and Judges in the Integration of the Charter and the Enhancement of the Commission’s Work in National and Sub-Regional Systems, Ninth Annual Activity Report, Annex VII at 6; reproduced in African Commission on Human and Peoples’ Rights, Recommendations and Resolutions (Banjul, The Gambia, African Commission on Human and Peoples’ Rights, 1998), p. 44 (hereafter ‘‘Compilation of Resolutions’’). See the discussion in section 4.3.2. See also Compilation of Resolutions, supra note 144, at 26, 27, and 34. For example, see the Zamani Lekwot case and the Newspapers Registration Decree case (discussed in section 4.2). See the discussion in section 4.4.3 in relation to the Political Parties (Dissolution) Decree 114 of 1999.

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across the continent, those which have worked with the Commission have made a tremendous contribution to its work.148 They have basically functioned as its ‘‘close partners.’’149 In the end, however, it must be conceded that not every country or CSA has taken the African system as seriously as they could and probably should. Needless to say, this has impeded the African system’s ability to optimize its influence within African states. One obvious reason for the very modest extent to which the African system has been influential on an Africa-wide basis, especially in domestic courts, is its relative youth as an IHI. As we have already seen, although the African Charter was adopted in 1981, both the Charter and the Commission became operative only in 1986/87. What is more, as a result of its youth, many of the provisions of the African Charter have not been as fully interpreted as they could have been.150 Related to this point is the quality of its jurisprudence.151 Young as it is, it has only recently begun to issue more extensively reasoned, rather than brief one or two page, decisions. While the quality of most of the latest decisions has been more encouraging, much remains to be done. It cannot expect that its decisions will be sought after at an optimal level by domestic courts if the quality of such decisions is not itself optimal. Another reason for the African system’s failure so far to maximize its impact within African states is the relative elitism of the rights language that it has almost by its very design had to largely favor and the similar elitism of most members of the small group of activist forces that basically drive the system’s domestic percolation on the continent. For instance, the powerful language of duties to other individuals that so clearly resonates with the lived experience of most Africans has not received nearly as much attention from the African Commission. The same can be said for almost all other oppositional languages of human dignity. As a number of scholars (the present author included) have shown elsewhere, most African CSAs – especially the self-professed human rights groups – suffer popular legitimacy deficits which arise from the elitism of their modes of struggle.152 Most are not popular or 148 150 151

152

See Mugwanya, supra note 8, at 249–251. 149 Ibid. See Adjami, supra note 68, at 152. See F. Viljoen and L. Louw, ‘‘The Status of the Findings of the African Commission: From Moral Persuasion to Legal Obligation’’ (2004) 48 Journal of African Law 1 at 20. See O. C. Okafor, Legitimizing Human Rights NGOs: Lessons from Nigeria (Trenton, NJ, Africa World Press, 2006), pp. 209–237. See also M. Mutua, ‘‘A Discussion on the Legitimacy of the Human Rights NGOs in Africa’’ (1997) Africa Legal Aid Quarterly

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mass social movements.153 Most are not fluent in the other oppositional languages that are spoken on the streets of African states.154 As such, there has been a social and communicative distance between most of these CSAs and the vast majority of subalterns who populate almost all African countries.155 By speaking the same elite rights language as most of these groups and ignoring the other languages of opposition that are spoken by subaltern Africans, and by being forced by a dearth of resources to remain so physically and socially removed from most ordinary Africans, the African system has also faced the very same popular legitimization problems as most of the CSAs that have helped drive its domestic impact. This has made it much harder for the African system’s progressive message to resonate at a sufficient depth among most ordinary Africans, thus increasing the difficulty of popularizing that system. As can be easily imagined, there are inevitable limits to the social impact of the African system vis-a`-vis domestic institution correspondence that is driven by a small band of elite activists who deploy the African Charter and the Commission within states. The less popularly validated these activists and the system itself are, the less powerful they are in relation to persuading recalcitrant regimes to alter their character, rules, or conduct. However, it is to the credit of the African system and many of its CSA allies that they have to an extent tried to get away from their elitism, at least in the sense that they have sometimes worked in alliance with more popular movements like trade unions, university student unions, and so on, and have also tried on occasion to reach out to and operate among ordinary Africans. Similarly, although the African system can only deal with those cases that CSAs, states, and individuals send to it, and despite its many efforts to promote the enjoyment of socio-economic (ESC) rights in Africa, when its ESC rights protection record is evaluated vis-a`-vis its civil and political rights (CPR) record, it becomes palpable that it has been relatively inattentive to the protection of ESC rights on the continent. This has impeded its capacity to transform itself from a relatively elitist and far-removed international institution to a much more popular body. While it is no secret that the African Charter does contain a number of ESC rights provisions, as was shown in chapter 5, the

153

(October–December) 28; C. A. Odinkalu, ‘‘Why More Africans Don’t Use the Human Rights Language’’ (2000) Human Rights Dialogue 3; and J. Ihonbvere, ‘‘Where is the Third Wave? A Critical Evaluation of Africa’s Non-Transition to Democracy’’ (1996) 43 Africa Today 343 at 358. Ibid. 154 Ibid. 155 Ibid.

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African Commission has since its inception dealt with far fewer ESC rights matters than CPR petitions. In any case, when compared to its CPR sister, there has not been nearly as much ESC rights correspondence to be observed within most African states. The Commission’s relative inattentiveness to ESC rights has reflected the historical marginalization of ESC rights activism by both international and African CSAs. Yet, since the vast majority of the populations of most African countries are very poor and tend to experience very serious ESC rights deprivations, any sustained effort to secure the enjoyment of ESC rights will have a particular appeal and potency on the continent. The failure to harness this potential in a fuller way has meant that the African system and its CSA allies have missed a key avenue of getting to their goal of popularizing the system and its work. In the end, the point is that the gap in popular validation of and attention to the African system has definitely helped impede its ability to optimize its domestic impact.

6.6.3 Optimizing the domestic impact of the African system: eight minimum conditions What, then, are the minimum conditions which must each be present for the African system to successfully shape and/or reshape logics of appropriateness, conceptions of interest, and self-understandings, and thus exert an optimal level of influence within a given African state? What are the minimum conditions for the optimal realization of what I have referred to elsewhere in this book as the ACHPR phenomenon? These minimum conditions are decipherable from the evidence adduced in chapters 4 and 5. The analysis conducted above is particularly important in this regard. Eight such minimum conditions are evident. These are that: (i) strong (that is, dynamic, creative, and courageous) activist forces (especially CSAs) must function locally; (ii) these CSAs must engage actively and extensively with the African system (especially by participating actively in the work of the African Commission, filing and arguing Communications before the African Commission, and deploying the African Charter within domestic institutions); (iii) a reasonably activist and independent judiciary (or at least a significant activist and independent wing of the judiciary) must exist in the given country; (iv) a reasonably sufficient amount of space for political dissent must exist within the country, whatever the character of its regime-type; (v) the African Charter must form a part of the domestic laws of the given

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country; (vi) the African Commission, or other institution of the African system, must actively and positively identify with the human rights struggles that rage within that country; (vii) the African Commission should make more effort to speak the other languages of human dignity that bring it much closer to the vast majority of Africans; (viii) that the African system and the activist forces that drive its domestic impact should pay much more attention to ESC rights. In other words, for it to germinate, flower, and yield an optimal harvest, the seed of the African system must find sufficiently fertile soil in the place in which it has been planted. This should not be surprising to a keen observer of IHIs. After all, does the European system not owe much of its success to the fertile Western European soil in which it was sown? While all eight minimum conditions must co-exist for the African system to optimize its impact within almost any African state, it is still possible of course that that system can exert a more modest measure of influence within a given country in the absence of one or more of these conditions. The example of Botswana, where the African system has had significant (though clearly not optimal) influence even in the absence of conditions such as the domestic incorporation of the Charter, strong CSAs, and a sizeable number of CSAs that have engaged actively and extensively with the African system, is particularly instructive in this regard. However, as instructive in this connection (although not necessarily determinative of the question), is the fact that almost all of these conditions (save adequate attention to ESC rights and other oppositional languages) co-existed in the key case of Nigeria (the country in which the African system has been most influential to date). And that is why one would not expect to observe more than minor levels of correspondence in a state like the Democratic Republic of Congo (the former Zaire) which has been characterized for decades by weak civil society, very little space for political dissent, and a much weaker judiciary than in Nigeria. However, as has been emphasized throughout chapters 4 and 5, it must be noted that, to date, the domestic promise of the African system has only been very modestly realized in almost all of the relevant countries. Its influence has not been hugely felt in any of the countries surveyed. Even its appreciable impact within Nigeria and South Africa has been altogether modest, although it has been much greater than its influence elsewhere on the continent. As such, much work remains, and many changes must first occur, before the African system’s domestic impact can be optimized.

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6.7 Summary of the arguments It has been shown in this chapter that the African system has had some impact, however modest, within the executive, legislative, and judicial branches of government in a number of African countries (other than Nigeria and South Africa), and that the manner in which the system achieved such influence tends to support the broad constructivist approach to IHIs. As is obvious from the discussion in this chapter, much of the impact identified here is of a kind that cannot be explained adequately by a focus on identifying state compliance with IHI norms. The lessons for more conventional scholarship on the African system, as well as for much IHI scholarship, are thus obvious. The factors that have facilitated or impeded the ability of the African system to achieve influence within African states were also analyzed and broadly specified. Indeed, in the end, eight minimum conditions for the optimization of the domestic impact of the African system were identified. These are also the minimum conditions that must be present for the African system’s capacity to optimally help in shaping the logics of appropriateness, conceptions of interest, or self-understandings held within key domestic institutions in most African states. Having reached this juncture it is imperative to synthesize existing theory and the emergent data, and consider more fully the need to enlarge (while retaining) the conventional optics with which scholars of the African system (and other IHI scholars) evaluate this type of international institution. In this way can a systematic case be made for centering the study of correspondence – a phenomenon that clearly encompasses state compliance. This will form the subject of the next chapter.

7 Toward an extended measure of IHI effectiveness: a quasi-constructivist perspective

7.1 Introduction The broad conceptual objectives of this book do bear restatement here. The first one is to show that the African system for the promotion and protection of human and peoples’ rights1 has manifested its most significant domestic promise when creatively deployed by activist forces in the domestic social struggles that these agents have waged within certain African states (particularly in Nigeria and South Africa). When the African system is so deployed, it can sometimes help shape or reshape the logics of appropriateness, self-understandings, and conceptions of interest held within key domestic institutions of target states, thereby contributing to the generation of valuable forms of correspondence between the norms of the African system and the behavior of the relevant domestic institutions. The other key objective of the book is to demonstrate the need for a modest enlargement of the conventional optics through which the effectiveness of the African system (and of similar IHIs) has hitherto been evaluated. There is a need, it is urged, to reach beyond, without abandoning, the search for state compliance as the measure of the utility of the African system and other such bodies. The key question here therefore is: what, if anything, does the analysis of the African system’s modest domestic impact conducted in earlier chapters tell us about how best to evaluate and imagine IHIs? In the light of that analysis, what the present chapter does is to make a case for movement toward the extension of the measure of IHI effectiveness. In particular, a case will be made for movement toward an expansion of the remit, perimeters, and reach of the model for assessing the ways in which IHIs exert domestic impact. Toward this end, the present chapter first articulates explicitly and ties together the underlying but often implied 1

Hereinafter referred to as the ‘‘African system.’’

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themes that run through the preceding chapters. In part, the chapter argues that as a result of the findings discussed in chapters 4, 5, and 6, this movement toward the extension of the measure of IHI effectiveness should involve some reduction (and not abandonment) of the emphasis placed (a) on the domestic analogy, (b) on the sense that textual or organizational reform is the key to IHIs success, and (c) on measuring state compliance with IHI decisions. Secondly, the chapter also argues that movement toward the above-mentioned goals will of necessity entail (i) a greater acknowledgement of the constitutive role that the local activist forces (such as CSAs and activist judges) play in IHI success stories, and (ii) an increased focus on the processes through which the generation of correspondence by IHIs is produced. And lastly, the chapter also discusses the ways in which the broadened account of the process of IHI impact within states that is offered in this book bears the hallmarks of, and lends much credence to, the broadly constructivist approach to IHI impact. These three discussions will serve as pointers to the character of the theoretical approach to IHI effectiveness that the book favors. The overall hypothesis of IHI effectiveness within states that is offered here is that (as is suggested by the discussions in chapters 4 and 5), an equally important barometer among a menu of several very important measures of IHI effectiveness within states is their ability to garner broad social/popular legitimacy within relevant states. Therefore, as valuable as these factors are, the nature of an IHI’s institutional design, its possession of enforcement powers, or the high rate of direct state compliance with its decisions, are not the only ways of assessing an IHI’s domestic impact. Assessments of the rate of state compliance with the IHI’s decisions, evaluation of the nature of its enforcement powers, and assessments of the character of its institutional design do not suffice on their own to offer a complete and accurate picture of an IHI’s contribution to domestic affairs or its overall effectiveness. As such the factors that tend to enhance the social/popular legitimacy of IHIs within particular states will also tend to enhance their effectiveness within those states. The domestic impact of IHIs is as dependent on their domestic social/political legitimacy as it is on the other competing factors. As I use it here, ‘‘social/political legitimacy’’ refers to the IHI’s acceptance, adherence, and ownership among critical masses of actors within key institutions and segments of the domestic society (such as CSAs, the non-elite general population, the judiciary, the legislature, and even the executive). The eight minimum conditions

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that were isolated and discussed in chapter 5 are the factors which have tended to enhance the social/political legitimacy of the African system within certain African states. These minimum conditions are also the factors that tend to enhance that system’s effectiveness within those states, and thus optimize its domestic impact. These are the same conditions which this chapter offers as a hypothesis of the factors that can tend to optimize the effectiveness within states of other similarly situated IHIs. To this end, I have organized the rest of the chapter into eight parts (the present section included). In section 7.2, I deal with the question of the utility of the domestic analogy (that is, the tendency to label the African system and other such IHIs as weak merely on the basis that they do not ‘‘look like’’ similar domestic institutions), and urge a reduction and not the elimination, of the emphasis that has been placed on this analogy. In section 7.3, I make a case for reducing, and not eliminating, the emphasis in the relevant literature on the textual or organizational capacity of the African system and other such IHIs as the key to the success of such bodies. In section 7.4, I urge scholars and other observers of the African system and other such IHIs to reach beyond, while retaining, state compliance as the key measure of IHI worth. While the tremendous benefits of frequent state compliance are all too obvious, this change is necessary if we are to capture adequately the full range of other ways in which such IHIs can be influential within states (and therefore recognize and account for what I have referred to elsewhere in the book as correspondence). In section 7.5, I highlight the constitutive roles that local activist forces play in the generation of such correspondence. In section 7.6, I make a case for a much-increased focus on the generation of this kind of correspondence, if IHIs are to be more adequately assessed and utilized. In section 7.7, I highlight the broader theoretical implication of the book. I do so by offering a succinct hypothesis on the broad conditions that may tend to suggest optimal IHI influence within a given state. At the outset, it is important to note that no general and complete theory of IHI effectiveness or value is advanced in this book. Rather, what is mostly offered is a conceptual analysis that seeks to supplement and complement pre-existing conceptual approaches to IHIs. In this sense, the book points toward an enlarged conceptual optic for understanding IHI worth. This is, of course, a legitimate, normal, and highly rewarding scholarly endeavor. Nevertheless, fresh insights on the assessment of the domestic impact of the African system (and most likely, of

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other such IHIs)2 are offered. On the whole, however, the arguments made here are broadly constructivist in orientation.3

7.2 Reducing the emphasis on the domestic analogy As Koskenniemi has shown, for far too many observers of IHIs, the standard for evaluating the performance of these institutions is derived from prevalent understandings of the nature of domestic courts and legal systems.4 In the explicitly or implicitly expressed view of these scholars, IHIs pass or fail the test of effectiveness and valuableness primarily because of the extent to which their capacities, powers, and functions resemble those normally associated with domestic courts. Those IHIs that operate like domestic courts are deemed to be ‘‘strong’’ and those that do not are deemed to be ‘‘weak.’’ Thus, the closer their architectural affinity to domestic courts is, the stronger these institutions seem; and the less these institutions ‘‘look like’’ domestic courts, the weaker they seem. For most such scholars, the path to progress for IHIs lies in the direction of their becoming more and more like domestic judicial institutions – more like the domestic courts that are obeyed and that are equipped with enforcement powers.5 For instance, in an article on the effectiveness of supranational adjudication, two very respected scholars have praised the European Court of Human Rights for making ‘‘their judgments as effective, for the most part, as national court rulings.’’6 Thus, given the relative lack of resemblance of most IHIs to domestic courts, it is not surprising that, as has been demonstrated in chapters 2 and 3, many relevant scholars have to varying degrees come to view most IHIs as weak and ineffectual institutions. Some, like Shand Watson, have even gone as far as doubting if ‘‘such a thing exists’’ as an international human rights regime.7 Most other scholars, be they realist, neo-realist, 2

3 4

5 6

7

The high likelihood that the findings discussed in this book, relating to the African system, apply to other such IHIs is supported by the recent work of Christof Heyns and Frans Viljoen. See C. Heyns and F. Viljoen, ‘‘The Impact of United Nations Human Rights Treaties on the Domestic Level’’ (2001) 23 Human Rights Quarterly 483 at 487. The meaning of ‘‘constructivism’’ has been explained in detail in chapter 2. See M. Koskenniemi, ‘‘The Pull of the Mainstream’’ (1990) 88 Michigan Law Review 1946 at 1954. See infra note 6. See L. R. Helfer and A. Slaughter, ‘‘Toward a Theory of Effective Supranational Adjudication’’ (1997) 107 Yale Law Journal 273 at 345–365. See S. Watson, Theory and Reality in the International Protection of Human Rights (New York, Transnational Publishers, 1999), p. 4.

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neo-liberal, or liberal seem to think of and imagine IHIs in far less critical but still less than complementary ways. By contrast, focused as they are on the contribution of IHIs to the reformulation in the understandings held by or within states, constructivists do not (in general) fall into this category.8 However, even the highly respected John Gerrard Ruggie (a well regarded constructivist) has felt able on at least one occasion to rely, at least implicitly, on a domestic analogy, and consequently to dismiss IHIs as ‘‘not terribly strong.’’9 The tendency in the literature to imagine IHIs as weak, and to desire their ‘‘progress’’ toward becoming like domestic judicial bodies that possess enforcement powers, is, of course, understandable given the reality of rampant human rights violations the world over. However, this perspective is still a limited one. As key human rights scholar Makau Mutua has himself argued, this optic, epitomized perhaps by Shand Watson’s work, is inadequate as a vision for the development of IHIs into more useful entities. This is because that tendency fails to take as seriously as it could the other important ways in which IHIs can often add value to domestic human rights struggles. For example, as has been shown in some of the preceding chapters of this book, IHIs’ norms can penetrate and percolate into domestic socio-legal orders and help foster a process of ideological transformation within domestic governmental institutions regarding their conception of their state’s interests and their sense of what is appropriate. As the ACHPR phenomenon – that is, the generation of correspondence within some African states between the norms of the African system and the character of domestic decisions, norms, behavior or the like – shows, even an IHI like the African system which does not share the enforcement characteristics supposedly possessed by domestic judicial bodies, can sometimes contribute in significant ways to the (small ‘‘i’’) ideological transformation of the domestic institutions of and domestic attitudes within some states parties. In chapter 4, I demonstrated the significant extent to which the institutions of the African system have had a positive impact on the character and orientation of judicial decision-making and action, executive action, legislative action, and on CSA activities and struggles within Nigeria. For instance, in chapter 4, I showed how the African Charter on Human and Peoples’ 8 9

See section 2.3. See J. G. Ruggie, ‘‘Human Rights and the Future International Community’’ (1983) 112 Daedalus 93 at 103.

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Rights and African Commission on Human and Peoples’ Rights both played a critical role in the Zamani Lekwot case. There, a Lagos High Court explicitly relied on the African Charter and on a decision of the African Commission indicating interim measures as a justification for (a) assuming jurisdiction in the case in the face of a decree of the then ruling military junta which ousted the court’s jurisdiction, and (b) issuing an injunction restraining the military from executing Zamani Lekwot and the others who had been sentenced to death. I also showed how the court’s ruling was influential with regard to the military government’s decision not to proceed with the execution, and to release them from jail eventually. Here, there was no direct ‘‘compliance’’ by Nigeria with any binding order issued by any international court or other IHI. The African Commission is not, of course, a court of law. The African Commission does not have power to enforce its own decisions. The Commission does not therefore ‘‘look like’’ a domestic judicial body. Yet, in this and many other cases, it was able to contribute in a modest but highly significant way to securing the lives and liberties of Zamani Lekwot and the others. It is hard to see what difference it would have made in this instance had the Commission ‘‘looked like’’ a domestic court! Decisions of international courts are not obeyed because those courts themselves can somehow enforce them. In the same connection, it was shown in chapter 5 that the African system has had a similar kind of impact on judicial decisions, executive deliberations and action, legislative debate and action, and CSA activities within the important South African case study. The decisions of the South African Constitutional Court in cases such as Kaunda, Bhe, and Dawood, were markedly affected by the invocation of the African Charter. The executive itself has invoked the African Charter to reinforce their arguments and formulate national policies. Many MPs have sometimes relied on the Charter to articulate and strengthen their arguments during legislative debates. And certain CSAs have relied on the Charter in their own work. I have also shown (in chapter 6) how the African system has helped to produce similar effects in other African countries. For instance, I discussed the Unity Dow case where a court in Botswana had relied explicitly on the African Charter in order to legitimize its interpretation of the Constitution. I also showed how this decision led to the repeal of certain offending provisions of the Citizenship Act of Botswana. What the bodies of evidence that were discussed in chapters 4, 5, and 6 imply is that those who tend to rely on the domestic analogy to judge IHI worth are often unable to capture nearly as sufficiently the impact

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that such IHIs have had within states. Thus, arguments that premise the hope for the positive transformation of existing IHIs on the need to make these institutions into international versions of domestic courts are, given the evidence discussed in this book, unconvincing for the most part. Given the very nature of the horizontal international order in which IHIs must and do operate, at least in the medium and short term, we should not expect these institutions to become more valuable to most people most of the time primarily because of their being made to look or act like domestic courts. The kind of extended measure of IHI effectiveness that can capture the various other subtle ways in which IHIs can add value to domestic human rights struggles will not be confined to a vision that imagines IHIs as something akin to domestic courts. Such bodies can have a significant impact on the lives of ordinary persons within states parties without possessing any significant enforcement powers. For example, the evidence discussed in chapters 4 to 6 suggests that when an IHI like the African system, which lacks enforcement powers, engages closely with local activist forces in a particular state, and those activist forces are reasonably strong, and the relevant country is endowed with a critical mass of activist judges, and some space for the expression of political dissent, then there is a reasonably good chance that the IHI can exert significant, if modest, influence within that country. The eight minimum conditions for the optimization of the African system’s influence within states have already been discussed extensively in chapter 6. The hypothesis here is that these same conditions will tend to frame the domestic promise of other IHIs that function in similar circumstances. Conceptual and practical benefits can result from taking seriously the lessons about the need for an extended measure of IHI effectiveness that have been discussed above. Indeed, by reducing our emphasis on the domestic analogy, we may in fact become better able to imagine, capture, and utilize the full potential of IHIs. For, if we better appreciate the other less material, more constructivist, ways in which these institutions are able to exert valuable influence within states, then we may turn more attention and resources to encouraging the factors that make those constructivist modes of exerting influence possible. For instance, we might want to spend more on the line item in the budget of a given IHI that is devoted to the fostering of discursive exchanges between IHIs and domestic courts, legislatures, and government officials. We may also want to devote more of such money to fostering such exchanges between IHIs and various activist forces within states parties.

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7.3 Reducing the emphasis on the textual appropriateness and/or institutional capacity of IHIs As has been explained in chapters 2 and 3, far too many observers of IHIs seem to think or imply that the character of the textual provisions in the instrument that establishes and grounds an IHI and/or an IHI’s institutional capacity is the main key to its success. They tend to see these factors as the register of an IHI’s ability to have a positive impact on the lives of ordinary people within states. The impression that is thus conveyed regarding the performance of IHIs is that the primary reason for the perceived ineffectiveness of an IHI is some deficiency or the other in its institutional architecture, composition, or capacity (as opposed to, for instance, the inability of local activist forces to deploy the given IHI in creative ways within states). This is a logical corollary of the dominant tendency in the relevant literature to view these institutions as all but panaceas for the human rights violations that plague the relevant states parties. Hardly are IHIs constructed simply as significant resources to be deployed by local activist forces as they deem appropriate. Hardly is as much agency located in local activist forces as in the IHI itself. This tendency has also led to the presence of a surfeit of admittedly thoughtful proposals for the reform of these institutions. In some cases, the implied cry is that ‘‘to amend the text is largely to solve the problem of IHI inefficacy.’’ In other cases, the plea is that ‘‘to add this or that mechanism, change this or that rule or procedure is to solve the problem.’’ The IHI qua institution remains the primary focus – the most important item on the reform agenda. As they should, most of the ‘‘schools’’ of IHI theory discussed at length in chapter 2 tend to place some emphasis on the textual/institutional reform of IHIs.10 Almost every observer of the IHI scene, including this author, has at one time or the other called for such textual or institutional reform. However, some do place too much emphasis on this strategy of achieving IHI effectiveness. More happily, republican liberal IHI scholarship as represented in Andrew Moravcsik’s work is one of the schools which do not generally place as much emphasis on this kind of reform. While stressing the role of IHIs in altering the domestic incentives facing key societal groups, republican liberalism emphasizes the convergence of national preferences that is reflective of 10

See I. Claude, Swords into Ploughshares: The Problems and Progress of International Organization (New York, Random House, 1984), pp. 435–436.

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the demands of domestic groups as key to understanding IHIs.11 Needless to say, constructivists do not tend to stress the textual/institutional reform of IHIs as the key to their success. Rather, constructivists focus on the ways in which the ideational, epistemic, or normative work of IHIs (which is not necessarily linked to the finer workings of their internal procedures) helps constitute the self-understandings, conceptions of interest, and sense of appropriateness held within key domestic institutions. Regrettably, however, the constructivist school does not thus far dominate the relevant literature. The problem with placing too much emphasis on textual and institutional reform of IHIs is that it seems somewhat too optimistic to found our hopes for more efficacious IHIs primarily on institutional reform as such. This is so, given the characteristic difficulty of physically accessing most IHIs for most ordinary victims of human rights abuses the world over. IHIs are not designed to and cannot reasonably be expected to deal with even the tiniest fraction of the millions of incidents of victimization that occur every hour in every part of the globe. IHIs which are so remotely located from the bulk of the world’s subalterns are hardly logistically friendly to such victims of abuses. And not even the work of CSAs, who can only be expected to deal with a very tiny fraction of such violations, can solve this problem. As such, it appears that the more important factor for IHI success is the extent to which such institutions are deployed creatively within the relatively more accessible domestic context. For instance, the extent to which an IHI has been able to penetrate and influence the process by which the self-understandings and conceptions of interest held by key domestic institutions are transformed is often much more important than whether it affords a prospective ‘‘litigant’’ this or that specific procedure. Specific procedures are, of course, very important resources which can sometimes enhance these tranformative processes. Yet, while the availability of specific kinds of procedures is important, and is not at all irrelevant, the suggestion here is that the more important thing is how creatively the IHI is deployed within the domestic context. This does not, of course, entail the abandonment of IHI-related institutional reform projects. That the domestic terrain ought to be the primary site for human rights struggle is recognized in Jack Donnelly’s recent work and in the United Nations’

11

See A. Moravcsik, ‘‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’’ (1995) 1 European Journal of International Relations 157 at 158.

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more recent efforts to develop and strengthen national human rights institutions.12 This point is demonstrated by the lessons that might be gleaned from a study of the capacity of the African system to generate valuable correspondence within states and to foster the occurrence of the ACHPR phenomenon. For instance, while I do enthusiastically welcome the establishment of the new African Court on Human and Peoples’ Rights,13 the argument that had been made for years by many scholars that the African system was all but a sham simply because it did not have a court or an organ that looked like a court, and that that system should be reformed in order to equip it with a court, is unconvincing in the face of the evidence discussed in chapters 4 to 6. If the suggestion is that the value–added that the African Court brings to the African system is that domestic courts might be inclined to follow the court’s interpretation of the African Charter, I have already shown that these same domestic courts have, in numerous decisions and resolutions, adopted interpretations which correspond with those that have been offered by the African Commission. They have also followed provisions of the African Charter. The Newspapers Registration case (discussed in chapter 4) is an excellent example. If the argument is that the addition of a court to the African system is a great triumph because it somehow gives the system ‘‘teeth,’’ then it is important to ask, if the system had such teeth what would it do with it? First of all, without a sheriff, it is doubtful that the mere addition of an international court to adjudicate over claims made against states that are still very mindful of their sovereignty is necessarily tantamount to affording ‘‘teeth’’ to the African system. Secondly, even if it were true that such a court would afford ‘‘teeth’’ to the African system, it remains doubtful that these states would feel any more compelled to obey a court rather than a commission merely 12

13

See J. Donnelly, ‘‘Post Cold War Reflections on the Study of International Human Rights’’ in J. H. Rosenthal (ed.), Ethics and International Affairs (Washington DC, Georgetown University Press, 1995), p. 52 (arguing that the struggle for human rights will be won or lost at the national level and that unless we begin to study such struggles, we will neither understand the most important issues nor be able to make the most effective possible contribution to the realization of internationally recognized human rights); and O. C. Okafor and S. A. Agbakwa, ‘‘On Legalism, Popular Agency and ‘Voices of Suffering’: The Nigerian Human Rights Commission in Context’’ (2002) 24 Human Rights Quarterly 662. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, available at www.dfa.gov.za/forelations/multilateral/treaties/court.htm.

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because the former is styled a court. Rather, it seems likely that the Court’s decisions may slowly gain in modest authority in much the same way as the Commission’s decisions have slowly gained some modest authority over the years. And the factors that will lead to such a net gain in authority have little to do with the particular institutional reform project of adding a court to the system. They have more to do both with the process by which the court will gain in credibility and social/political legitimacy within states and the ways in which it is able to help transform the self-understandings and conceptions of self-interest held by the domestic institutions and the discerning publics of states parties. The phenomenal increase in the authority of the Indian Supreme Court is eloquent testimony to the fact that the success of even domestic courts has had relatively less to do with their institutional capacities and architectures, than with their ability to garner social legitimacy.14 While institutional reform should by no means be abandoned, an enlarged measure of IHI effectiveness ought to place less reliance on the amendment of constitutive texts and the reform of institutional mechanisms and procedures than is presently the case. Rather, much more attention should be directed toward capturing, analyzing, and understanding the various other important ways in which IHIs, typically lacking as they are in extremely efficient organizational design, operation, and procedures, can inject a significant dose of influence within domestic institutions, thereby helping over time to transform thinking and action within the relevant state. As we have argued above, the key precondition for an IHI to achieve these objectives is that it must first attain a sufficient measure of social/political legitimacy. The more social legitimacy it attains within a state, the more it is able to influence its domestic institutions. No matter how organizationally efficient an IHI becomes, if it cannot positively affect domestic actors in this latter way, it will be of very little actual value in a world in which the international legal order is likely to remain fairly horizontal in the foreseeable future, and in which IHIs cannot therefore hope to develop an ability to routinely enforce their decisions. In such a world, some of the scarce resources that are available to be devoted to IHI reform are better devoted to strengthening factors that enhance IHI visibility and legitimacy within 14

See G. H. Gadbois, ‘‘The Supreme Court of India as a Political Institution’’ in R. Dhavan, R. Sudarshan, and S. Khurshid (eds.), Judges and Judicial Power (Bombay, Tripathi, 1985), p. 258. See also U. Baxi, ‘‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’’ (1985) Third World Legal Studies Annual 107.

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critical domestic institutions, and among key population segments within state actors. Nothing less than the enhancement and encouragement of the kind of virtual human rights networks that we have already seen in the previous chapters is entailed.

7.4 Reaching beyond (while retaining) the state compliance measure The dominant tendency in the relevant literature is to concentrate to a large extent on the search for and measurement of state compliance with the decisions of an IHI. The rate of state compliance is treated as a more or less adequate indicator of the effectiveness or ineffectiveness of that institution.15 This much is clear from the analyses in chapters 2 and 3. Constructivists are almost alone in reaching beyond, without abandoning, state compliance as the fulcrum or most important component of the conception of an ideal IHI. Most constructivists emphasize the fact that studying and understanding how people think about norms and ideas and knowledge is at least as important as measuring the behavior that changes in response to the invocation of such norms (that is, measuring state or actor compliance). It does bear repetition here to state that there is nothing inherently wrong in viewing state compliance with IHI decisions as important. What is problematic about the near exclusive focus on state compliance is the penchant of its far too many adherents to regard this factor as the measure of the value of IHIs. Yet, the compliance-focused optic is in 15

This dominant tendency in the relevant bodies of literature is reaffirmed in a thoughtprovoking way in Oona Hathaway’s recent article. In that article, Hathaway suggests that there is a strong correlation between treaty ratification by states and the occurrence of worse than expected human rights violations in those states, and reaches this admittedly counter-intuitive conclusion by both asking research questions that are explicitly compliance-centered, and utilizing a quantitative analytical method. While Hathaway admits readily that quantitative analysis is prone to miss important insights when used in the assessment of IHI behavior (a self-criticism with which I agree), it is in fact her reliance on the compliance measure that I am concerned with. The two major research questions that she asks are both, by her own admission, compliance-centered and limiting. Indeed, Hathaway is quick to warn the reader not to jump to conclusions on the basis of her quantitative study. See O. A. Hathaway, ‘‘Do Human Rights Treaties Make a Difference?’’ (2002) 111 Yale Law Journal 1935. For a critique of this article, see R. Goodman and D. Jinks, ‘‘Measuring the Effects of Human Rights Treaties’’ (2003) 14 European Journal of International Law 171. For a rigorously justified and convincing suggestion that we ought to focus less on measuring compliance in the evaluation of the effectiveness of UN treaty regimes, see Heyns and Viljoen, supra note 2.

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itself inadequate as a way of understanding fully the worth of IHIs, especially when they are deployed within states. It is crucial, therefore, that we attempt to reach beyond without abandoning this limited and limiting way of thinking about, imagining, and evaluating IHIs. An extended measure of IHI effectiveness would (while eschewing its complete abandonment) reach beyond the compliance-focused frame of reference. It will regard evidence provided by the compliance-focused optic as a starting point; as scarcely the ‘‘be-all’’ and ‘‘end-all’’ of the evaluation of IHI efficacy, relevance, and worth. It will, for example, seek to observe the various ways in which IHI norms become embedded in, and therefore influential within, domestic legal regimes, or are otherwise creatively deployed by local activist forces so as to persuade the relevant actors to alter their self-understandings, conceptions of interest, and/or logics of appropriateness. It will indeed, seek evidence of the capacity of IHIs to contribute significantly to the reformulation of actor’s selfunderstandings, conceptions of interest, and sense of appropriateness as at least as important as evidence of direct state compliance (or otherwise) with the norms and decisions of the relevant IHI. As the extent to which an IHI has attained social legitimacy within a state tends to reflect the extent of its domestic effectiveness at the relevant time, the factors which enhance its social/political legitimacy within a particular state will also tend to better reflect its domestic impact than a low rate of direct state compliance with its decisions. There is, of course, not much of an issue if an IHI already enjoys a very high rate of direct state compliance. It is hypothesized here that the minimum conditions for the optimization of the African system’s domestic impact which were discussed in chapter 6 ought to tend to frame our understanding of the domestic promise of similarly situated IHIs.

7.5 Constitutive role of activist forces in IHI effectiveness Traditionally, most theoretical approaches to the study of IHIs have been state-centric. Most of these approaches tended to treat states as unitary actors, and as such paid much less attention to the role of substate actors in shaping IHIs. However, this historical state-centrism in the relevant literature has all but been reversed. Though this reversal has not been total and complete, it is now quite fashionable for the well dressed scholar to boldly wear a tag that refers to the importance of including non-state actors in thinking about international institutions. This much is evident from the discussions in section 2.3.

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The critical role that such non-state actors play in ‘‘bringing IHIs home’’16 and in getting IHI decisions and norms to the grassroots, cannot be over-emphasized. Not only do non-state actors facilitate IHI work at the international plane, the efforts of such forces in fact help constitute, in part at least, the work of such IHIs. In many cases, without the agency and creativity of such activist forces, many IHIs would be virtually hamstrung in reaching victims at the grassroots, and yet these are the people who need them the most. But the IHI – non-state actor relationship has also been a symbiotic and not a parasitic one. The work of these activist forces has in turn benefited tremendously from their engagement with IHIs (such as the African system).17 That much is clear from the evidence of the ACHPR phenomenon already discussed in chapters 4 to 6. In those chapters, evidence that was obtained from Nigeria, South Africa, and some other African countries was analyzed. This body of evidence suggested that the African system has, without necessarily achieving a high rate of state compliance, exerted a significant (although modest) level of influence within many states parties – influence that cannot be easily or readily imagined as based on the securing of state compliance. It was also shown that this modest impact was achieved through a mechanism that involved the construction of a virtual human rights network among the institutions of the African system and local activist forces such as CSAs and activist judges. Some of these activist forces have acted as the go-betweens or intelligent transmission-lines between the African system and various domestic institutions and actors within Nigeria and certain other African countries. In this process of trans-judicial communication, Nigerian CSAs have played the role of brainy relays which do not merely transmit, but also contribute to the development and strengthening of human rights norms and regimes. Relying on components of the African system as a crucial resource, activist forces in Nigeria (including activist judges) fought a relentless, if sometimes subtle, battle with successive military regimes for the hearts and minds of Nigerians, and regarding the very legitimacy of military rule in Nigeria. They won in each case, 16

17

I borrow this expression from the work of Harold Koh. See H. H. Koh, ‘‘Bringing International Law Home’’ (1998) Houston Law Review 623. Heyns and Viljoen have come to a similar conclusion relative to the operation of UN treaty regimes. In their considered view, ‘‘treaties need a strong domestic constituency to have local impact.’’ See Heyns and Viljoen, supra note 2, at 522.

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however marginal or modest the victory. As the evidence already discussed shows quite clearly, the African system was an invaluable normative and operational resource and ‘‘virtual ally’’ during this long struggle. For instance, in the Zamani Lekwot case and in the Newspaper Registration Decree Case, an activist wing of the Nigerian judiciary discharged itself most creditably in benefiting from, and deploying creatively, the argumentative benefits of this kind of trans-judicial communication. I have already dealt with these two cases more fully in chapter 4. Similar examples were discussed in chapter 5 (on South Africa) and chapter 6 (on certain other countries). In these examples, as in almost all the cases examined and stories told here, CSAs worked to increase the social/political legitimacy of the African system within states. They deployed it within the courts, in public debates, and in discussions with local and foreign officials. By so doing they played the pivotal role in embedding the African system and its norms/processes within the discourse and thought processes of domestic institutions and public alike. In this way, they played a key role in the increased acceptance of and adherence to that system within the relevant states. As we have seen, activist judges, activist MPs, and independent journalists also played key roles in this process. Thus, a re-imagined conception of the measure of IHI impact within states cannot but remain deeply aware of, and emphasize, the constitutive roles that local activist forces play in bringing about IHI impact within states and in thus enhancing IHI effectiveness. No longer do we imagine IHIs almost as islands unto themselves. IHIs have always relied on domestic activist forces for information and motivation. Yet it is even more important for scholars to account for the increasingly constitutive roles which local activist forces play within states in the work of IHIs. These institutions operate in virtual networks or alliances constituted in part by these local activist forces so as to be able to affect positively the lived experiences of some of those who need them the most. This is another lesson that can be learnt from a critical understanding of the ACHPR phenomenon which has been mapped and analyzed in chapters 4, 5, and 6 of this book.

7.6 Quasi-constructivism as broadly explanatory of the ACHPR phenomenon As used in this book, the term ‘‘correspondence’’ refers to the production of desired kinds of thinking and action within key domestic

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institutions that is attributable, at least in part, to an IHI. Such correspondence almost always occurs in the context of the significant deployment of IHIs on the domestic level by local agents. This much has already been made clear elsewhere in this book. Again, as already noted at the end of chapter 2, the ACHPR phenomenon stands for the following: the deployment of a norm or procedure of the African system by activist forces within a state party in a way that more or less results in the desired outcome, without that state necessarily complying in any direct way with a view, indicated measure, or recommendation of the African system. In this way, the virtual network constituted by the African system and local activist forces has contributed significantly, albeit modestly, to the reformulation of some of the prevalent understandings of governmental responsibility, the appropriateness of military rule, and certain other senses of appropriateness held by some key domestic institutions within the relevant states. In this way significant forms of correspondence were produced between the thought and actions of domestic institutions and the norms of the African system. But what explains the capacity of an African system that is widely viewed as weak to help create modest but highly significant correspondence within the domestic institutions of some state parties? How could such a weak IHI exert such influence on one such state even while its government was a military dictatorship? Its ability to capture the ACHPR phenomenon provides an indication of the broad explanatory power of constructivism with regard to our understanding of the nature, work, and the value of IHIs. Constructivist (especially quasi-constructivist) approaches offer the most convincing explanation of how an IHI as weak as the African system could have such a significant influence within a state party like Nigeria that has been governed for the most part by dictatorial military regimes, and which has been the system’s most influential state party. It is also useful in explaining that system’s more modest impact within other African states. Needless to say at this point, the broad constructivist optic also captures the limited influence of the African system within more democratic contexts such as post-Apartheid South Africa, Botswana, and even post-military ruled Nigeria. The contention of many quasi-constructivists that the process via which IHIs achieve domestic impact is driven by so-called norm entrepreneurs is supported by the evidence that is discussed in this book about the constitutive role played by activist forces in the process of achieving IHI impact. As already argued above, in almost all the cases discussed in

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chapters 4 to 6, these popular actors played such a key role. As there has already been extensive discussion of this point elsewhere in this book, that discussion will not be repeated here. The contention of many quasi-constructivists that in facilitating the processes through which IHIs exert influence domestically, the relevant actors are seen to make detailed end-means calculations, is supported by the evidence of the ACHPR phenomenon already discussed in chapters 4 and 5. That contention is thus partially explanatory of the conduct of certain key agents which helped foster the changes and achievements in Nigeria (for example, activist judges, activist local CSAs, activist lawyers, and activist journalists). Three examples will suffice to illustrate this point. For instance, in the Zamani Lekwot case, a local CSA, the Constitutional Rights Project (CRP), made a detailed ends-means calculation that if it could secure an indication of interim measures from the African Commission, and widely publicize that decision, it might be able to secure an injunction from a local court in Nigeria ordering the government to stay the executions of General Lekwot and the others. This injunction would not have been otherwise obtainable because the jurisdiction of local courts to review the death sentences had been ousted already by a military decree. This strategy worked quite well. In the same case, an activist judge, Onalaja J, calculated that he could safely rely on the indication of interim measures cited to him in court by counsel for the CRP, and that he could ‘‘legally’’ subvert the logic of the ouster clause, thereby assuming jurisdiction over the matter in a manner that did not appear too partisan or political. Activist journalists also calculated, quite correctly as it turned out, that if they gave the ruling wide publicity, given the play of politics at the time, the then ruling military junta might feel sufficient moral and cultural pressure as to refrain from approving the death warrants of the condemned persons. In fact, the ruling military junta eventually commuted the death sentences to five-year terms. In each case, the work of the African system was crucial in providing the normative influence on the activist forces, the courts, and the military regime which eventually led to the reprieve. In the process, the prevalent understanding of the extent to which the military could subvert the human rights of citizens through the strategy of inserting ‘‘ouster clauses’’ in its decrees was challenged, and the process of its delegitimization and eventual reformulation was prodded on to a significant extent. By not executing General Lekwot and the others, and eventually releasing them from jail before the expiry of the term of years to which they had been sentenced, the ruling military junta

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was in fact acknowledging impliedly that the ouster of the court’s jurisdiction had been inappropriate. It was impliedly acknowledging that the said ouster, which had been justified as an act that had been done in the interests of national security,18 was not such a serious national security matter after all. Had they felt it necessary, they would, as they had done on some occasions, have issued a decree annulling the court’s order.19 They did no such thing. In the Newspapers Registration Decree case, the Media Rights Agenda (MRA) and its sister CSAs, the High Court judge, and activist journalists, all made similar detailed ends-means calculations. The CSAs calculated that if they invoked the African Charter, a treaty that did not really lie within the capacity of the then ruling military regime to amend, and which granted the same kinds of human rights that would have been available had the military not already suspended most sections of the Nigerian Constitution, then it could persuade the courts essentially to apply the Nigerian Constitution in an indirect way. Without the invocation of the African Charter, this indirect application of the Nigerian Constitution to the matter at hand would not otherwise have been possible. This was because that Charter was at the time the only international human rights treaty that had been incorporated into Nigerian law, and as such was the only such treaty that the Nigerian courts could actually apply. Armed with Charter arguments, the trial judge calculated that he could subvert the logic of the military decree that sought to oust his jurisdiction to try and decide the extant matter. He could do so by relying on an international treaty that had been incorporated into Nigerian law, and which was clearly applicable in the circumstances. In an atmosphere of great political risk, where an obvious identification with the human rights struggle that was being waged by the CSAs and other such activist forces was almost suicidal for his career, it was much safer for the judge to ground his argument against the ouster of his jurisdiction by the military decree on the imperative of obedience to a ‘‘higher’’ African legal order. He could thus appear much more detached and reasonable to the military junta than he would otherwise have seemed. As importantly, the activist journalists who had a great stake 18

19

The military regime had argued that the condemned persons had supposedly participated in the mass murder of ‘‘settler’’ ethnic Hausa-Fulani persons during a communal disturbance in Kaduna state of Nigeria. Federal Military Government (Supremacy and Enforcement of Powers) Decree 28 of 1970.

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in the outcome of this matter20 calculated that, given the deeply negotiated nature of Nigeria’s political order (military ruled or not), affording intense publicity to this entire saga would likely bring increased political pressure on the military junta to annul the offensive decree. As it turned out, this calculation was correct. In John K. Modise v. Botswana, where Mr. Modise, an opposition politician, had been denied citizenship rights by the government,21 the CSAs and other activist forces that helped drive the case made detailed ends-means calculations as well. They calculated that their invocation of the African system’s norms and processes would enlarge the repertoire of resources available to them, coopt the normative sense of the rightness of their own arguments that a positive decision at the African Commission affords, and would likely ratchet up the existing political pressure on Botswana’s usually democratic government, and force it to compromise. This turned out to be the case. Further evidence of this calculative character of CSAs in deploying IHIs within states is provided in chapter 5 (on South Africa). Constructivism (especially quasi-constructivism) is also explanatory in this case in another sense. As a largely constructivist approach, it accepts the notion, so fundamental to that school, that ideas, norms, and knowledge play a fundamental role in international politics and in the exertion of influence by IHIs within domestic settings. The ACHPR phenomenon is in fact evidence for the proposition that ideas, norms, and knowledge (non-material factors) do play a fundamental role in the exertion of influence by IHIs within states. In all of the examples that I offered in chapters 4 to 6, the ideational, normative, and epistemic influences of the African system and its virtual network partners are palpable. For instance, the African Commission’s negative views as to the appropriateness of ouster clauses, military rule, the closure of newspaper houses on security grounds, the arbitrary arrest of activists, and the status of the African Charter within the legal orders of states parties, etc., have on occasion been directly or indirectly influential within the domestic political and judicial institutions of certain African states. This much is evident from chapters 4, 5, and 6. For example, in all the three cases discussed above, norms of the African system were invoked within domestic institutions and contexts in ways that altered existing logics of appropriateness and/or embedded new ideas about what was in that domestic institution’s interest to do in the circumstances. In the Zamani Lekwot and Newspaper Registration Decree cases, African system norms 20

See section 4.2.2.

21

See section 5.2.

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were the keys that unlocked the relevant local courts from their internment by a military decree which had ousted their jurisdiction. These norms were also the keys that unlocked the imagination of the relevant local activist forces, and enabled the invention of novel and more effective arguments. In the Modise case, the invocation of these norms helped strengthen the logic offered by the embattled opposition politician and the sense of the rightness of his cause, thereby increasing the political influence of his campaign. In the Kaunda, Bhe, and Dawood cases (discussed in chapter 5 on South Africa), the African Charter played similar roles. In all these cases, norms percolated into and marked the character of domestic contests in ways that lend credence to the broad constructivist approach to IHI effectiveness. Thus, it is my considered view that (in relative terms) the best theoretical framework for explaining the ACHPR phenomenon is the constructivist (if quasi-constructivist) one. With more stress on the leadership roles of local activist forces (especially the CSAs), and a little less stress on the role of coercive pressure, the quasi-constructivist theoretical approach will explain almost unassailably the evidence that I have collectively referred to in this book as constitutive of the ACHPR phenomenon. As quasi-constructivism is largely a constructivist approach, my own understanding and explanation of the ACHPR phenomenon is, broadly speaking, constructivist. This understanding is that, under certain broadly specifiable conditions,22 strong local CSAs operating with a measure of political space (not necessarily within a democracy), and which have engaged closely with the African system and with their own activist judges, can act as brainy relays that help foster situations where the African system’s norms are used within states to enable authoritative alterations to occur with regard to the logics of appropriateness, conceptions of interest, and self-understandings which are held within key domestic institutions of that country. In this story of locally brokered IHI influence within states, the IHIs are as important as the local activist forces involved. This does not detract from the fact that, in the end, it is the IHI’s norms and processes that exert influence within the relevant state. For at least three reasons, constructivists are likely to recognize the approach adopted in this book as akin to their own approach. It focuses on ideas, knowledge, norms, and other non-material influences within 22

These conditions have been discussed in much detail in chapter 5. They will be applied toward the formulation of a broad IHI (as opposed to African system) hypothesis below.

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states that can affect and in turn be affected by international institutional norms, processes, and action. Similarly, it focuses as much on the effects of international institutions on how domestic institutions and actors ‘‘think,’’ as it does on how the actual behavior of these local institutions and actors are affected by their international counterparts. And thirdly, it focuses on what might be styled the non-givenness of the self-understandings, preferences, and interests of domestic institutions and actors – the fact that these can partially be constituted by international institutional norms, processes, or action.

7.7 Hypothesizing the measure of IHI effectiveness From the analysis of the character of the ACHPR phenomenon,23 what then seem to be the best conditions for achieving the optimal level of IHI effectiveness within states (with or without the incidence of state compliance)? Under what broad conditions can IHIs produce the kinds of changes in the thinking and action of key domestic institutions which allow correspondence to occur? Under what broad conditions is the kind of IHI–domestic institution correspondence the possibility of which has been demonstrated in this book best realized? To adapt once again from the discussion in the penultimate section of chapter 6 regarding the minimum conditions for the optimization of the African system’s domestic promise, it appears that eight such minimum conditions for optimal IHI effectiveness (via the production of constructiviststyle influence) within states can be hypothesized. These are also the conditions which tend to optimize an IHI’s social legitimacy within states. As these conditions have been adumbrated upon in detail in chapter 6, their consideration here will be brief. These conditions are that: strong (that is, dynamic, creative, and courageous) CSAs should function locally; these CSAs should engage actively and extensively with the relevant IHI (e.g. by filing and arguing Communications before the appropriate IHI, participating in its work as an observer, and by

23

This analysis is not used here as a definite pointer to the conditions necessary for every IHI’s maximum domestic impact. One cannot over-generalize from one case study of one IHI! This analysis is merely being used as a flexible guide for the assessment of other IHIs. However, it should be noted that some independent studies of other IHIs lend much support to the view that the position that is taken here in relation to the African system may be generalizable to many other IHIs. For instance, see Heyns and Viljoen, supra note 2 (on the UN human rights system constituted by many IHIs).

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deploying its norms within the relevant domestic institutions); a significant wing of the local judiciary should be activist and independent; a reasonably sufficient amount of space for political dissent should exist within the country, whatever the character of its regime-type; the treaty setting out the norms that the relevant IHI is designed to purvey should as much as possible form a part of the domestic laws of the given country; the monitoring institution within the IHI should actively and positively identify with the human rights struggles that rage within the relevant country; the IHI and its local activist force allies should pay more attention to socio-economic (ESC) rights; the IHI and these activist forces should as much as is possible pay far more attention than they so far have to the alternative languages of opposition that are spoken by subalterns within particular states; and the IHI and activist forces should eschew as much as possible their relatively elitist orientations. As has already been shown in relation to the African system, the presence of strong CSAs in a particular country (where ‘‘strength’’ is defined in terms of their dynamism, creativity, and courage) has tended to correlate to a reasonable degree with the capacity of the African system to exert influence within a given state. There is reason to hypothesize that this will also be the position with respect to the domestic promise of most other IHIs. For instance, with respect to the group of UN IHIs (which make up more than 70 percent of all IHIs the world over), William Korey has recently noted that, ‘‘[t]he basic truth, which knowledgeable officials at the UN clearly understood [and continue to understand], was that without NGOs, the entire human rights implementation system at the UN would come to a halt.’’24 It was also shown in chapters 4 to 6 that for the presence of strong CSAs to matter, these CSAs must have engaged actively and extensively with the African system.25 It is reasonable to suppose that this finding will apply to most other IHIs in most other places. Again, based on what is known already about other IHIs, it is also quite reasonable to suggest that the fact that the presence in a country of activist judges who constitute a significant wing of the judiciary has mattered very much with respect to the African system, makes it more likely than not that it would matter as much with respect to most other IHIs on most other continents. For instance, the 24

25

See W. Korey, CSAs and the Universal Declaration of Human Rights: ‘‘A Curious Grapevine’’ (New York, St. Martin’s Press, 1998), p. 9. Ibid. See also Heyns and Viljoen, supra note 2.

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domestic effects that decisions from the European system once had in Zimbabwe are largely owed to the efforts of local activist judges.26 Similarly, it is hard to imagine that any IHI can exert an optimal degree of impact within a country in which very little space exists for political dissent to occur. And lastly, based on the evidence adduced with respect to the African system and existing knowledge about other IHIs, it is not unreasonable to suppose that the more the monitoring mechanisms of an IHI take an active and positive interest in the work of the domestic activist forces that operate in a given country, the more that IHI is likely to have an impact within that country. As such, the findings discussed in chapter 6 with respect to the African system will likely serve as a valuable guide for understanding most other IHIs. This is not to argue, of course, that no IHI anywhere can have some measure of impact within any country without all of these conditions being present. The point here is that the evidence from our case study tends to suggest that these and the other factors already discussed may constitute the broad conditions under which most IHIs are most likely to generate the most correspondence and achieve the most impact within states. Since more work clearly needs to be done with regard to many more IHIs before a general theory can be postulated in relation to our understanding of IHIs more generally, the conceptual position stated above remains much closer to a general hypothesis than to a general theory. It is, however, demonstrably valid in relation to the African system. 26

See A. R. Gubbay, ‘‘The Protection and Enforcement of Fundamental Human Rights: The Zimbabwean Experience’’ (1997) 19 Human Rights Quarterly 227 at 233.

8 Conclusion

In the interest of clarity, the broad conceptual objectives of this book will be restated here. The first such objective was to show that the African system for the promotion and protection of human and peoples’ rights1 has manifested its most significant domestic promise when creatively deployed by local activist forces in the domestic social struggles that these agents have waged within certain African states (particularly in Nigeria and South Africa). When the African system has been so deployed, it has, under certain broadly specifiable conditions, helped shape the logics of appropriateness and/or conceptions of interest held within key domestic institutions of target states, thereby contributing to the generation of valuable forms of correspondence between the norms of the African system and the thought and action of the relevant domestic institutions. As central an objective of the book is to demonstrate the need for a modest expansion of the conventional optics through which the value/effectiveness of the African system and similar international human rights institutions2 have hitherto been evaluated. There is a need, it is urged, to reach beyond, without abandoning, the search for and measurement of state compliance as the barometer of the rise or fall in the utility of the African system and other IHIs. Analysis of the African system’s more subtle domestic impact therefore formed the bulk of the discussion in the book. Although the principal focus of the book is the African system, as has been argued in chapter 6, its findings are quite relevant as guides to the understanding of most other IHIs. As such, while the book is a case study

1 2

Hereinafter referred to as the ‘‘African system.’’ To be absolutely clear, I must note, yet again, that I use the concept of ‘‘international human rights institutions’’ (IHIs) in a broader sense than it has been used in H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals (New York, Oxford University Press, 2000), p. 771.

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of the story of one IHI, that story can provide some broad guidance for understanding IHI effectiveness in general. As importantly, this case study of the African system is sufficiently interesting for at least three reasons. First, the widespread consensus in the conventional literature that the African system is the weakest existing IHI means that a finding that it can exert significant impact within states does indicate preliminarily that most other such IHIs can also exert such influence given certain broadly specified conditions. Secondly, given that it is within mostly military-ruled Nigeria and not in consistently democratic Botswana or more deeply democratized South Africa that the African system has had its most appreciable impact, a significant puzzle is presented to IHI theory. Thirdly, given Nigeria’s widely acknowledged status during most of this period as the most powerful and important state actor within the African system,3 what we were confronted with was a somewhat unusual phenomenon that called for systematic explanation. This kind of influence (what I have referred to elsewhere as the ACHPR phenomenon) cannot be accounted for either by an explanation that is based on the African system’s coercive power (because it has had virtually none), or by an explanation that is based on its capacity to induce direct state compliance (because there is very little evidence that supports such an explanation). In any case, given post-Apartheid South Africa’s status as perhaps the second most influential African country, the African system’s influence within it cannot easily be explained by most compliance models. And although the voluntary compliance model could be referred to for a possible explanation, it would eventually be ineffectual given the thin evidence of direct compliance in relation to South Africa. Indeed, only one case from South Africa has so far been decided by the African Commission. As has been made clear in earlier chapters, the incidence of this kind of influence cannot be adequately explained without a way of capturing and assessing the pivotal and critical role that was played by non-state actors, as well as by the ‘‘ideas, norms, and knowledge’’ that IHIs seek to disseminate.4

3 4

For most of this period South Africa was not a member of the African system. For a fuller explanation of this ‘‘school’’ of thought, see chapter 2. Scholars who may be viewed (to varying extents) as part of this broad ‘‘school’’ include Ernst Haas, Peter Haas, John Ruggie, Martha Finnemore, Kathryn Sikkink, Alexander Wendt, Thomas Risse, and now Jutta Brunnee and Stephen Toope. This list is, of course, not at all exhaustive. See, e.g., E. B. Haas, ‘‘Words Can Hurt You; or, Who Said What to Whom about Regimes’’

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Methodologically, the study offers some evidence in favor of the value of what might be styled ‘‘ethnographic ways of knowing’’5 in critically broadening, deepening, and sharpening both international law and ‘‘IR’’6 scholarship’s vision, cognition, recognition, appreciation, and acknowledgement of the possible effects of IHIs within the domestic spheres of states. The study suggests the crucial importance of working at the grassroots level (within a concrete context) in order to be able to filter and tease out the ways in which local agents deploy and make use of IHIs as resources in their own human rights struggles (rather then confining one’s work to viewing IHIs at and from the international plane).7 This approach also allows one to learn more fully about the various ways that these local agents are themselves sometimes profoundly affected by these IHIs. It also suggests that a vast amount of work remains to be done in terms of studying piece by piece, locality by locality, and country by country, the totality of the range of domestic effects that IHIs can under certain conditions generate. Without this kind of ethnographic work, our discussions of and theorizing about IHIs will not be as fully informed as they ought to be. For instance, without

5 6

7

(1982) 36 International Organisation 207; P. M. Hass, ‘‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’’ (1989) 43 International Organisation 377; J. G. Ruggie, ‘‘Global_Governance.net: The Global Compact as Learning Network’’ (2001) 7 Global Governance 371; M. Finnemore and K. Sikkink, ‘‘International Norm Dynamics and Political Change’’ (1998) 52 International Organisation 887; A. Wendt, ‘‘Anarchy is What States Make of It: The Social Construction of Power Politics’’ (1992) 46 International Organisation 391; T. Risse, ‘‘Let’s Argue! Communicative Action and International Relations’’ (2000) 54 International Organisation 1; and J. Brunnee and S. J. Toope, ‘‘International Law and Constructivism: Elements of an Interactional Theory of International Law’’ (2000) 39 Columbia Journal of Transnational Law 19. For a fuller discussion of this important methodological issue, see chapter 1. By ‘‘IR’’ scholarship is meant the body of international relations theoretical and other work which has focused on understanding the significance of international institutions. For a survey of this literature, see section 2.2. Balakrishnan Rajagopal has recently argued that such a methodology could also enable international law to adequately account for, deal with, and theorize the ‘‘resistance’’ that is often mounted at a grassroots level by mass social movements against certain features, modes, and ideas of nation-building and governance. See B. Rajagopal, ‘‘International Law and Resistance: Perspectives from Mass Social Movements’’ in A. Anghie, B. Chimni, K. Mickelson, and O. Okafor (eds.), The Third World and International Law: Law Politics and Globalization (Leiden, Martinus Nijhoff, 2003), p. 145. I am in complete agreement with him on this point. However, the present study is focused primarily on understanding the ways in which local activist forces (who mostly work within mass social movements) are, as agents, able to facilitate or not facilitate the achievement of certain valuable and significant effects within states actors by IHIs. In this way, the present study takes seriously at least one component of mass social movement thinking and action.

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this kind of ethnography, the present study would have been insufficiently cognizant of the ACHPR phenomenon. Who, for instance, would ordinarily expect the African system to have had its most appreciable impact within military-ruled Nigeria as opposed to consistentlydemocratic Botswana? The book is clearly a part of the young but now burgeoning transdisciplinary literature (which was discussed extensively in chapters 3 to 6) on the nature and domestic impact of the African system. However, previous scholarship on that system’s domestic effects has focused primarily on its inability to either coerce or cajole state compliance. By centering the correspondence that the African system can generate, by highlighting and offering an explanation for the ACHPR phenomenon, by specifying the minimum conditions for the optimal attainment of the African system’s domestic promise, by showing how an adequate appreciation of this phenomenon cannot but transform our imagination of the African system, and by hypothesizing IHI effectiveness from the insights provided by the case study of the African system, this book hopes to add value to the scholarly ferment in this area. This book is also a part of a growing trans-disciplinary literature on the significance, performance, and domestic effects of IHIs in general.8 By offering a case study that evidences both the specific actuality, and more general possibility, of constructivist-style IHI influence within certain African states, this book adds to the existing IHI literature. 8

For example, see J. G. Ruggie, ‘‘Human Rights and the Future International Community’’ (1983) 112 Daedalus 93; N. G. Onuf and V. S. Peterson, ‘‘Human Rights and International Regimes’’ (1984) 37 Journal of International Affairs 329; J. Donnelly, ‘‘International Human Rights: A Regime Analysis’’ (1986) 40 International Organisation 599; N. H. Samhat, ‘‘Human Rights Regimes and the Emergence of International Political Community’’ (1999) 36 International Politics 503; N. H. Samhat, ‘‘International Regimes as Political Community’’ (1997) 26 Millenium 349; A. Moravcsik, ‘‘The Origins of Human Rights Regimes: Democratic Delegation in Post War Europe’’ (2000) 54 International Organisation 217; A. Moravcsik, ‘‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’’ (1995) 1 European Journal of International Relations 157; A. M. Weisburd, ‘‘Implications of International Theory for the International Law of Human Rights’’ (1999) 38 Columbia Journal of Transnational Law 45; A. Rosas, ‘‘State Sovereignty and Human Rights: Toward a Global Constitutional Project’’ (1995) 43 Political Studies 61; D. P. Forsythe, ‘‘Human Rights in US Foreign Policy: Retrospect and Prospect’’ (1990) 105 Political Science Quarterly 435; C. Henderson, ‘‘Human Rights and Regimes: A Bibliographical Essay’’ (1988) 10 Human Rights Quarterly 525; and P. Burns and O. C. Okafor, ‘‘The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or How it is Still Better to Light a Candle than to Curse the Darkness’’ (1998) 9 Otago Law Review 399.

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This book is also a part of the relatively extensive trans-disciplinary literature on the role and effect of ideas, norms, and knowledge in international politics.9 Its focus on mapping and explaining the creative deployment of one IHI’s norms by local activist forces within certain states makes it an avowedly, if cautiously, institutionalist enterprise. Though this book has not been primarily devoted to a discussion of the nature, effects, or significance of the local human rights NGOs10 which operate within African states, and elsewhere in the world, one of the principal insights developed within the book relates to the high significance of the grassroots and institutional work of such CSAs for much of whatever successes IHIs can claim.11 As has been urged in this book, many such CSAs often function as (virtual or actual) human rights network partners of specific IHIs (such as the African system). In that capacity, they have often helped in the designing, facilitating, oiling, and/or consolidating of such IHIs. In the process, they have helped IHIs in their attempts at the reconfiguration and reconstruction of the selfunderstandings, senses of appropriateness, and conceptions of selfinterest held by key domestic actors and institutions within states. In the specific case of the African system’s engagement and identification with struggles for legitimate governance in Nigeria, South Africa, and in certain other African states, local CSAs (including the trade unions, professional associations, women’s groups, students’ unions, dissident members of the elite political and military classes, activist judges, and activist journalists) formed networks that in many cases aspired to become, but for complex reasons fell short of becoming, ‘‘mass social movements’’12 dedicated to the protection of human rights in the relevant countries. In a sense, this meant that these CSAs shared the African system’s desire for progress toward the vision of the good life

9

10

11 12

See A. Klotz, Norms in International Relations: The Struggle Against Apartheid (Ithaca, NY, Cornell University Press, 1995); K. Sikkink, ‘‘Human Rights, Principled IssueNetworks, and Sovereignty in Latin America’’ (1993) 4 International Organisation 411; M. E. Keck and K. Sikkink, Activists Beyond Borders (Ithaca, NY, Cornell University Press, 1998); and T. Risse, S. C. Ropp, and K. Sikkink (eds.), The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press, 1999). For a detailed study of one national community of NGOs, see O. C. Okafor, Legitimizing Human Rights NGOs: Lessons from Nigeria (Trenton, NJ, Africa World Press, 2006). This aspect of the study is also explored in ibid. For a thorough discussion of the question of the definition of the term ‘‘mass social movement,’’ see Rajagopal, supra note 7.

CONCLUSION

301

contained in the African Charter on Human and Peoples’ Rights13 and in such other documents. As such, it is only fair to suggest that the book also shows, much in line with Balakrishnan Rajagopal’s germinal work on international law and social movements,14 that scholars must take the work of domestic actors (such as those formed by CSAs and other activist forces) much more seriously even when attempting to account for the effectiveness of IHIs themselves. But much work remains to be done in this and similar areas. To paraphrase Samuel Barnes, a social scientist’s characteristic modesty is in order here.15 For, as social scientists know only too well: Little is known with certainty; some evident results have limited applicability; and often there is no compelling evidence as to what works and what does not.16

As such, the claims that I make in this book are, while significant in my view, necessarily modest in nature. I do not purport to settle any of the pertinent debates, only to open up possibilities that might add to and enhance pre-existing approaches to the study of IHIs. I only aim to point us in a newer conceptual direction, and not propose a grand, or even a general, theory. In this sense are my conclusions offered largely as tentative guides for ongoing future thought and action in this area. In any case, the work is indebted to all those who have already written in various ways on this subject. 13 14 15

16

African Charter on Human and Peoples’ Rights (1982) 58 ILM 21. See Rajagopal, supra note 7. See S. H. Barnes, ‘‘The Contribution of Democracy to Rebuilding Postconflict Societies’’ (2001) 95 American Journal of International Law 86. Ibid.

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Oberleitner, G., ‘‘African Commission on Human and Peoples’ Rights’’ (1995) 13 Netherlands Quarterly of Human Rights 476 Odinkalu, C. A., ‘‘Muhammed Garuba and Others v. Lagos State Attorney-General and Others: A Case for Municipal Application of International Human Rights Norms’’ (1991) 1 Journal of Human Rights Law and Practice 125 ‘‘Proposals for Review of the Rules of Procedure of the African Commission of Human and Peoples’ Rights’’ (1993) 15 Human Rights Quarterly 533 ‘‘The Individual Complaints Procedure of the African Commission on Human and Peoples’ Rights: A Preliminary Assessment’’ (1998) 8 Transnational Law and Contemporary Problems 359 ‘‘Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights under the African Charter on Human and Peoples’ Rights’’ (2001) 23 Human Rights Quarterly 327 ‘‘Back to the Future: The Imperative of Prioritizing for the Protection of Human Rights in Africa’’ (2003) 47 Journal of African Law 1 Odinkalu, C. A. and Christensen, C., ‘‘The African Commission on Human and Peoples’ Rights: The Development of its Non-State Communication Procedures’’ (1998) 20 Human Rights Quarterly 235 Ogbu, O. N., ‘‘The Judiciary in a Polity: A Force for Stability or Instability? The Nigerian Experience’’ (1999) 11 African Journal of International and Comparative Law 724 Ojo, O. and Sesay, A., ‘‘The OAU and Human Rights: Prospects for the 1980s and Beyond’’ (1986) 8 Human Rights Quarterly 89 Okafor, O. C., ‘‘Entitlement, Process, and Legitimacy in the Emerging International Law of Secession’’ (2001) 9 International Journal on Minority and Group Rights 41 ‘‘Modest Harvests: On the Significant (but Limited) Impact of Human Rights NGOs on Legislative and Executive Behaviour in Nigeria’’ (2004) 48 Journal of African Law 23 Okafor, O. C. and Agbakwa, S. C., ‘‘On Legalism, Popular Agency and ‘Voices of Suffering’: The Nigerian Human Rights Commission in Context’’ (2002) 24 Human Rights Quarterly 662 Okere, B. O., ‘‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: A Comparative Analysis with the European and American Systems’’ (1984) 6:2 Human Rights Quarterly 141 Oloka-Onyango, J., ‘‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa’’ (1995) 26 California Western International Law Journal 1 ‘‘Human Rights Activism in Africa: A Frog’s Eye View’’ (1997) Codesria Bulletin (No. 1) 3 ‘‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’’ (2000) 6 Buffalo Human Rights Law Review 39

314

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315

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316

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Slye, R. C., ‘‘International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law’’ (2001) 2 Chicago Journal of International Law 59 Smith, I. O., ‘‘Enforcement of Human Rights Treaties in a Military Regime: Effect of Ouster Clauses on the Application of [the] African Charter on Human and Peoples’ Rights in Nigeria’’ (2000) 9 Review of the African Commission on Human and Peoples’ Rights 192 Smithey, S. I., ‘‘A Tool, not a Master: The Use of Foreign Case Law in Canada and South Africa’’ (2001) 34 Comparative Political Studies 1188 Stephens, B., ‘‘Book Review’’ (2001) 95 American Journal of International Law 257 Sterling-Folker, J., ‘‘Competing Paradigms or Birds of a Feather? Constructivism and Neo-Liberal Institutionalism Compared’’ (2000) 4 International Studies Quarterly 97 Stevens, J., ‘‘Colonial Relics I: The Requirement of Permit to Hold a Peaceful Assembly’’ (1997) 41 Journal of African Law 118 Sullivan, D. S., ‘‘Effective International Dispute Settlement Mechanisms and the Necessary Condition of Liberal Democracy’’ (1993) 81 Georgetown Law Journal 2369 Sylvester, C., ‘‘Empathetic Cooperation: A Feminist Method for IR’’ (1994) 23 Millenuim 315 Takirambudde, P., ‘‘Six Years of the African Charter on Human and Peoples’ Rights: An Assessment’’ (1994) 7 Lesotho Law Journal 35 Tennant, C., ‘‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’’ (1994) 16 Human Rights Quarterly 1 Tigere, P., ‘‘State Reporting to the African Commission: The Case of Zimbabwe’’ (1994) 38 Journal of African Law 64 Udombana, N. J., ‘‘Toward the African Court on Human and Peoples’ Rights: Better Late than Never’’ (2000) 3 Yale Human Rights and Development Law Journal 45 ‘‘Between Promise and Performance: Revisiting States’ Obligations under the African Human Rights Charter’’ (2004) 40 Stanford Journal of International Law 105 Umozurike, U. O., ‘‘The African Charter on Human and Peoples’ Rights’’ (1983) 77 American Journal of International Law 902 ‘‘The Protection of Human Rights under the Banjul Charter on Human and Peoples’ Rights’’ (1988) 1 African Journal of International Law 65 Viljoen, F., ‘‘Some Arguments in Favour and Against an African Court on Human and Peoples’ Rights’’ (1998) 10 ASICL Proceedings 21 ‘‘Application of the African Charter on Human and Peoples’ Rights by Domestic Courts in Africa’’ (1999) 43 Journal of African Law 1 ‘‘The Relevance of the Inter-American Human Rights System for Africa’’ (1999) 11 African Journal of International and Comparative Law 659

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317

‘‘State Reporting under the African Charter on Human and Peoples’ Rights: A Boost from the South’’ (2000) 44 Journal of African Law 110 Viljoen, F. and Louw, L., ‘‘The Status of the Findings of the African Commission: From Moral Persuasion to Legal Obligation’’ (2004) 48 Journal of African Law 1 Watson, J. S., ‘‘Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law’’ (1979) University of Illinois Law Forum 609 Weisburd, A. M., ‘‘Implications of International Theory for the International Law of Human Rights’’ (1999) 38 Columbia Journal of Transnational Law 45 Welch Jr., C. E., ‘‘The African Commission on Human and Peoples’ Rights: A Five Year Report and Assessment’’ (1992) 14 Human Rights Quarterly 43 ‘‘Human Rights and African Women: A Comparison of Protection under Two Major Treaties’’ (1993) 15 Human Rights Quarterly 549 Wendt, A., ‘‘Anarchy is What States Make of it: The Social Construction of Power Politics’’ (1992) 46 International Organisation 391 ‘‘Collective Identity Formation and the International State’’ (1994) 88 American Political Science Review 384 ‘‘Constructing International Politics’’ (1995) 20 International Security 71 Wiebe, V., ‘‘The Prevention of Civil War through the Use of Human Rights System’’ (1995) 27 New York University Journal of International Law and Politics 409 Young, O., ‘‘International Regimes: Toward a New Theory of Institutions’’ (1986) 39 World Politics 104 ‘‘Political Leadership and Regime Formation: On the Development of Institutions in International Society’’ (1991) 45 International Organisation 281

Cases Abacha v. Fawehinmi (2000) 6 NWLR 228 (Supreme Court of Nigeria) Agballah v. National Constitutional Conference Commission and others, Suit No. FHC/E/8/94, Federal High Court Enugu (unreported) Agbakoba v. Director of State Security Service and another (1994) 6 NWLR (Pt. 351) 475 Attorney General v. Ajayi [2002] 3 CHRLD 332 (30 May 2000) Attorney General of Botswana v. Unity Dow (1992) LRC (Const.) 623; (1994) 6 BCLR 1 (Botswana); (1992) SACLR LEXIS 7 Awaye and others v. Controller General of Prisons and others, suit no. FHC/L/CS/ 1113/97 (unreported), 4 June 1999 The Bamidele Case, suit no. B/6M89, Benin High Court Bhe and others v. Magistrate Khayelitsha and others (2005) 1 BCLR 1 (CC) Case v. Minister of Safety and Security (1996) 5 BCLR 609; (1996) SACLR LEXIS 3

318

SELECT BIBLIOGRAPHY

Chairperson of the Immigration Selection Board v. Frank and another (2001) 3 CHRLD 179 Chinamora v. Angwa Furnishers (Pvt) Ltd (1997) 2 BCLR 189. See also (1996) SACLR LEXIS 54 Chirwa v. Malawi (1996) 3 International Human Rights Report 134 Christian Education South Africa v. Minister of Education (2000) 10 BCLR 1051 (CC) Comptroller Nigeria Prisons v. Dr. Femi Adekanye and 26 Others (1999) 10 NWLR 400 Constitutional Rights Project v. President Ibrahim Babangida and 2 others, suit no. M/102/93, Lagos State High Court, Nigeria (unreported) Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication No. 102/93 (2000) 7 International Human Rights Reports 259 Constitutional Rights Project and the Civil Liberties Organisation (on Behalf of Ken Saro-Wiwa) v. Nigeria, Consolidated Communications No. 137/94, 154/96, and 161/97 CRP (in respect of Ken Saro-Wiwa and 17 others) v. Nigeria, Communication No. 140/94 Director State Security Service and Another v. Olisa (1999) 3 NWLR 314 D. P. P. v. Pete (1991) LRC (Const.) 553 Ejiofor v. Okeke and others, suit no. FHC/AN/M9/96, Court of Appeal (Enugu Division) (unreported) Ekpu and others v. Attorney-General of the Federation (1998) 1 Human Rights Law Ephrahim v. Pastory (1990) 87 I.L.R. 106 (Tanzania High Court) Fawehinmi v. Abacha (Court of Appeal) (1996) 9 NWLR 710 Fawehinmi v. Aminu (1993) FHCLR 259 Fawehinmi v. IGP, suit no. M/324/89, Lagos High Court (unreported) Ferreira v. Levin NO (1996) 1 BCLR 1 (CC) Garreth Anver Prince v. South Africa, Communication No. 255/2002, decided at the 38th Ordinary Session of the African Commission, Banjul, the Gambia, 21 November–5 December 2005 (on file with the author) Gbemre v. Shell Petroleum Development Company Nigeria Ltd and others, suit no. FHC/B/CS/53/05, 14 November 2005, per C. V. Nwokorie, J (unreported) Government of South Africa and others v. Grootboom and others (2000) 11 BCLR 1169 (CC) Gumne and others v. Attorney General [2003] 1 LRC 764 Hoffman v. South African Airways (2000) 11 BCLR 1211 (CC). See also (2000) SACLR LEXIS 127 Human Rights Commission of South Africa v. SABC (2003) 1 BCLR 92 (BCC) Incorporated Trustees of Media Rights Agenda v. Attorney General of the Federation, suit no. FHC/L/CS/908/99, Federal High Court, Lagos (unreported)

SELECT BIBLIOGRAPHY

319

Islamic Unity Convention v. The Independent Broadcasting Authority and others (2002) 5 BCLR 433 (CC) Katangese Peoples’ Congress v. Zaire, Communication No. 75/92 (1996) 3 International Human Rights Reports 136 Kokori v. General Sani Abacha and 4 ors (No. 3), (1995) FHCLR 413 Kuesa v. Minister of Home Affairs, (1993) 3 BCLR 1 (NmH) [High Court] Labiyi v. Aretiola (1992) 8 NWLR 139 Lakanmi v. Attorney General Western Region (1971) University of Ife Law Reports 201 Laugh it off Promotions Case v. South African Breweries and another (2005) 8 BCLR 743 (CC) Minister of Home Affairs and another v. Marie Fourie and another, available at www.constitutionalcourt.org.za/Archimages/5257.PDF (visited 6 February 2006) Modise v. Botswana, Communication No. 97/93, (1999) 6 International Human Rights Reports 828 Muojekwu and others v. Ejikeme and others CA/E/7/99, Court of Appeal (Enugu Division) (unreported) Nemi v. Attorney General of Lagos State and another (1996) 6 NWLR 42 Ndigwe v. Ibekendu and another (1998) 7 NWLR 486 Nigerian National Petroleum Corporation v. Fawehinmi and others (1998) 7 NWLR 598 Ogugu v. The State (1994) 9 NWLR 1 Olisa Agbakoba v. Director State Security Service and another (1994) 6 NWLR (Pt. 351) 475 Oshevire v. British Caledonian Airways Ltd (1990) 7 NWLR 507 Potgieter en’n Ander v. Killian (1995) 11 BCLR 1498 (N) Prince v. President Law Society Cape of Good Hope and others (1998) 8 BCLR 976 (Cape High Court) Prince v. President Law Society Cape of Good Hope and others (2000) 3 SA 845 (SCA) Prince v. President Law Society Cape of Good Hope and others (2002) 3 BCLR 231 (CC) Rahim Dawood v. Minister of Home Affairs and others (2000) 8 BCLR 837 Registered Trustees of the Constitutional Rights Project (in respect of Zamani Lekwot and 6 others) v. Nigeria (Merits) Communication No. 87/93, reproduced in (1996) 3 International Human Rights Reports 137 Richard Akinola v. General Ibrahim Babangida and 3 others, suit no. M/ 462/93 Richard Gordon Volks No v. Ethel Robinson and others (2005) 5 BCLR 446 (CC) Samuel Kaunda and others v. President of the Republic of South Africa and others (2004) 10 BCLR 1009 (CC)

320

SELECT BIBLIOGRAPHY

Shabalala v. Attorney General of Transavaal (1994) 6 BCLR 85 (T). See also (1994) SACLR LEXIS 243 Shane Jaipal v. The State (2005) 5 BCLR 423 (CC) Social and Economic Rights Action Centre and another v. Nigeria, Communication No. 155/96, reproduced in Fifteenth Annual Activity Report of the African Commission, 2001–2002 (on file with the author) Soobramoney v. Minister of Health, KwaZulu-Natal (1997) 12 BCLR 1696 (CC) State v. Godfrey Baloyi and others (2000) 1 BCLR. 86 (CC) State v. Makwamyane (1995) 6 BCLR 665 State v. Viljoen (2003) 4 BCLR 450 (T). See also (2003) SACLR LEXIS 15 State v. Williams [1995] 3 SA 633 (CC) U.A.C. of Nigeria v. Global Transporte Oceanico S.A. (1996) 5 NWLR 291 Ubani v. Director of State Security Services and Attorney General (1999) 11 NWLR 129 Wittmann v. Deutscher Schulverein Pretoria (1999) 1 BCLR 92 (T). See also (1999) SACLR LEXIS 43

Select Domestic Statutes Nigerian Statutes African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap.10 Laws of the Federation of Nigeria, 1990 Civil Disturbances (Special Tribunal) Decree 2 of 1987 (Nigeria) Federal Military Government (Supremacy and Enforcement of Powers) Decree 28 of 1970 (Nigeria) Federal Military Government (Supremacy and Enforcement of Powers) Decree 12 of 1994 (Nigeria) Newspapers Registration Decree No. 43 of 1993 (Nigeria) Nigerian National Human Rights Commission Decree No. 22 of 1995 (Nigeria) Political Parties (Dissolution) Decree No. 114 of 1999 (Nigeria) State Security (Detention of Persons) Decree of 1984 (Nigeria)

South African Statutes Black Administration Act 38 of 1927 (South Africa) Constitution of the Republic of South Africa Act, 1996 (Act 108 of 1996) (South Africa) Immigration Act 2002 (South Africa) Indecent or Obscene Photographic Matter Act of 1967 (South Africa) Intestate Succession Act 81 of 1987 (South Africa)

SELECT BIBLIOGRAPHY

321

Prevention of Family Violence Act 133 of 1993 (South Africa) Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (South Africa)

International instruments, regional instruments, commission reports, and resolutions African Charter on Human and Peoples’ Rights (1982) 58 ILM 21 The African Commission on Human and Peoples’ Rights: Examination of State Reports, 11th Session, March 1992 (Oslo: Danish Centre for Human Rights, 1995) African Commission Report Volume 12 African Commission Report Volume 13 African Commission Report Volume 14 African Commission Report Volume 18 Directory of NGOs with Observer Status at the African Commission, 2004, available at www.achpr.org/english/info/directory_ngo_en.html (visited 25 January 2006) Final Communique of the 27th Ordinary Session of the African Commission on Human and Peoples’ Rights, paragraph 17 (on file with the author) Final Communique´ of the Second Extraordinary Session of the African Commission on Human and Peoples’ Rights, held in Kampala, Uganda, 18–20 December 1995 (on file with the author) Final Communique´of the 38th Ordinary Session of the African Commission, Banjul, The Gambia, 21 November–5 December 2005, available at www.achpr.org/ english/communiques/communique38_en.htm (visited 25 January 2006) at 2 International Covenant on Civil and Political Rights (1967) 6 ILM 1027 Kenya National Commission on Human Rights, Strategic Plan of Action: 2003–2008 (on file with the author) List of Judges Elected to the African Court of Human Rights, available at www.amtdatatechnologies.com/acc/UploadedDocuments/ 1242006115621AM718.doc (visited 6 February 2006) Mauritius Plan of Action of the African Commission, available at www.achpr.org/ english/_doc_target/documentation.html?../declarations/ declaration_mauritius_en.html (visited 17 January 2005) Proceedings of the Conference on African Commission, 1991 June 24–26 (Fund for Peace 3/26/93 MDF) (on file with the author) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, available at www.dfa.gov.za/for-relations/multilateral/treaties/court.htm (visited 17 January 2005)

322

SELECT BIBLIOGRAPHY

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (13 September 2000); reprinted in 1 African Human Rights Law Journal 40, entered into force on 25 November 2005, available at www1.umn.edu/humanrts/africa/protocolwomen2003.html (visited 6 March 2006) Resolution on the Establishment of Committees on Human Rights or other Similar Organs at National, Regional or Sub-Regional Levels (1989) www.achpr.org/english/_doc_target/documentation.html?../resolutions/ resolution05_en.html (last visited on 17 January 2005) Resolution on the Gambia, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/ 8th, Annex VII Resolution on Nigeria, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/8th, Annex VII Resolution on the Military, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1994–1995, ACHPR/RPT/ 8th, Annex VII South African Human Rights Commission, Fourth Annual Report December 1998–December 1999 (on file with the author) United Nations General Assembly Resolution on the Situation of Human Rights in Nigeria, A/RES/50/199 of 22 December 1995 Yaounde Declaration, available at www.sahrc.org.za/afr_sec_yaounde_declaration.pdf (last visited on 17 January 2005)

INDEX

Abiola, Moshood 101 access to institutions 281–282 activists see civil society actors (CSAs) Adekanye, Femi 107 Adjami, Mirna 244, 255 advocacy networks (ADNs) 58 Africa Unity Day 190 African Charter of Human and Peoples’ Rights (ACHPR) 1, 2, 56, 57, 59–61, 63, 65–67, 74, 90, 91, 233, 296–301 adequacy of conventional conceptions 88–90 compliance 79, 89, 92–93 enforcement-centrist sub-model 78–80 reaching beyond state compliance measure 284–285 voluntary compliance-based sub-model 80–82 effectiveness 4, 82–87, 273 constitutive role of activist forces 285–287 hypothesizing measure of 293–295 quasi-constructivism and 57–59, 273–276, 287–293 reaching beyond state compliance measure 284–285 reducing emphasis on domestic analogy 276–279 reducing emphasis on textual appropriateness and/or institutional capacities 280–284 enforcement-centrism 78–80 impact on Nigeria 93–95, 153–154 assessment of overall impact 141–147

323

civil society actors (CSAs) 134–141 executive action 116–127 judicial system 94, 96–116 legislative action 127–133 negative factors 151–153 positive factors 148–151 impact on other African states 220–224, 272 civil society actors 250–253 civil society actors (CSAs) 223, 234, 250–253 conditions for optimization 253–271 executive action 224–236 judicial system 236–245 legislation 245–250 impact on South Africa 155–156, 218–219 assessment of overall impact 200–208 civil society actors (CSAs) 161, 164–165, 166, 167, 168, 177, 178, 180, 182, 191–199, 203–206, 208–209, 212, 214 executive deliberation and action 177–186 judicial system 156–177 legislative action and debate 180–181, 186–191 negative factors 212–218 positive factors 208–212 interpretation 69, 70, 83, 86, 140 optimization of impact 253–271 African system specific factors 265–270 domestic factors 256–265 eight minimum conditions 270–271

324

INDEX

African Charter of Human and Peoples’ Rights (ACHPR) (cont.) as panacea 74–75 reform proposals 75–78 weaknesses 67–71, 79 African Charter on the Rights of the Child 66, 164 African Commission on Human and Peoples’ Rights 2, 65, 66, 75, 81, 89, 146, 200, 228–230, 233–234, 265–270 effectiveness 82–86, 87 interpretation of Charter 69, 70, 83, 86, 140 Mauritius Plan of Action 233 Nigeria and 122, 128, 143, 144, 150 acceptance of Commission investigative mission 117–119 civil society actors (CSAs) and 135, 137 judicial system 97, 99–101, 102, 112 legislation 129–130, 131, 133 non-enforcement of press laws 102, 125–126 openly condemnatory resolutions 120–122 release of detainees 125 setting up Nigerian National Human Rights Commission (NNHC) 126–127 suspension of trials and executions 122–124, 146 reform proposals 76–78 South Africa and 161, 195, 204 weakness 71–73, 79 African Court of Human and Peoples’ Rights 2, 65, 66, 74, 80, 81, 89, 161, 180, 210, 282 effectiveness 87 reform proposals 76 weakness 73–74 African human rights day (21 October) 85 African Union (formerly Organisation of African Unity) 67, 72, 73, 78, 122, 187, 209–210 Afrikaner people 189–190

Agbakoba, Olisa 105–107 Akinyemi, Bolaji 139 Algeria 231, 250 Alston, Philip 67, 91, 92 Amnesty International 68, 75, 76 Amoah, P. 83 Ankumah, Evelyn 70, 72, 78, 81, 83, 84, 145, 252 appeal rights Nigeria 128, 129 architecture of human rights institutions 50–53 Ashley, Richard 15, 31, 32 Attorney-General of Botswana v. Unity Dow 225–226, 236–237, 245, 252, 278 Bagri case (Benin) 237 bail DPP v. Pete (Tanzania) 242, 252 Nigeria 109 Baloyi case (South Africa) 167–168, 201 Bamidele (Opeyemi) and others v. Alele Williams and another (Nigeria) 114 banking system Failed Banks Tribunal case (Nigeria) 107–110, 111 Barnes, Samuel 301 Baxi, Upendra 147, 207 Bayefsky, Anne 42 Belgium 47 Bello, Emmanuel 69, 69 Benedek, Wolfgang 76, 144 Benin 263, 264 Developmental Associations case 237–238 legislation 247–248 Benvenisti, Eyal 31 Bhe case (South Africa) 162–165, 180, 202, 203, 207, 278, 292 Bilder, Richard 47, 49 Bondzie-Simpson, Ebow 77 Botswana 229, 264, 297, 299 Attorney-General of Botswana v. Unity Dow 225–226, 236–237, 245, 252, 278

INDEX

civil society actors (CSAs) 252, 256, 258 John K. Modise v. Botswana 226–227, 252, 258, 291 Brunnee, Jutta 27, 30, 33, 36, 37, 38 Burns, Peter 48 Butegwa, Florence 261 Cameroon 263 judicial system 262 legislation 248 Canada 99 Canadian Charter of Rights and Freedoms 70 capacity of human rights institutions 50–53 Cape Verde 248 capital punishment see death penalty Carr, E. H. 18 Case v. Minister of Safety and Security (South Africa) 172, 181 Certification case (South Africa) 175 Chad 84 Chairperson of the Immigration Selection Board v. Frank and another (Namibia) 240–241, 246 Chayes, Abraham 31, 36, 37, 38 Chayes, Antonia Chandler 31, 36, 37, 38 Checkel, Jeffrey 16 Chinamora v. Angwa Furnishers (Pvt) Ltd (Zimbabwe) 243 Chirwa v. Malawi 235 citizenship Attorney-General of Botswana v. Unity Dow 225–226, 236–237, 245, 252, 278 John K. Modise v. Botswana 226–227, 252, 258, 291 Civil Disturbances (Special Tribunal) Act 1987 (Nigeria) 128 civil imprisonment Chinamora v. Angwa Furnishers (Pvt) Ltd (Zimbabwe) 243 Civil Liberties Organisation (Nigeria) 105, 129 civil society actors (CSAs) 1, 2–3, 145, 256–260, 266, 270, 271, 292, 300–301

325

constitutive role of activist forces 285–287 Nigeria 94, 95, 102–103, 104, 105, 113, 122, 125, 126, 128, 134–141, 142–143 African Commission’s investigative mission and 118 Civil Liberties Organisation 105, 129 Constitutional Rights Project (CRP) 99–101, 102–103, 124, 125, 129, 136–138, 289–290 negative factors 151–152 positive factors 148–149, 150 press freedom and 102–103, 136–138 public attitudes and 138–141 Shelter Rights Initiative (Nigeria) 135 work of 134–136 other African states 223, 234, 250–253 South Africa 161, 164–165, 166, 167, 168, 177, 178, 180, 182, 191–199, 203–206, 208–209, 212, 214 Clark, Ann-Marie 31 classic liberalism see republican liberalism Claude, Inis 20 cognitivism 15, 16, 21, 23–24 cohabitation Volks No case (South Africa) 165–166, 204, 207 Commission for Gender Equality (CGE) (South Africa) 162, 182, 202 Commonwealth of Nations 123 Community Law Centre (South Africa) 192, 197–198, 204 compliance African human rights system 79, 89, 92–93 enforcement-centrist sub-model 78–80 reaching beyond state compliance measure 284–285

326

INDEX

compliance (cont.) voluntary compliance-based sub-model 80–82 enforcement-centrist sub-model African human rights system 78–80 international human rights organizations (IHIs) and 44–47 international institutions and 35–37 international human rights organizations (IHIs) and 43–48, 92–93 enforcement-centrist sub-model 44–47 reaching beyond state compliance measure 284–285 voluntary compliance-based sub-model 47–48 international institutions and 33–39 blind spots in compliance-centrist approach 38–39 enforcement-based sub-model 35–37 voluntary compliance-based sub-model 37–38 voluntary compliance-based sub-model African human rights system and 80–82 international human rights organizations (IHIs) and 47–48 international institutions and 37–38 Concerned Parents and Teachers Associations v. Morning Star Preparatory School and others (Ghana) 251–252 Concord Press of Nigeria Ltd v. Attorney-General and others (Nigeria) 138 Congo (Brazzaville) 253 Congo (Democratic Republic, former Zaire) 85, 271 Constitutional Rights Project (CRP) (Nigeria) 99–101, 102–103, 124, 125, 129, 136–138, 289–290

constitutions Benin 247–248, 263 Cameroon 248 Cape Verde 248 Certification case (South Africa) 175 Egypt 248–249 Namibia 246 Nigeria 290 constructivism 284 effectiveness of human rights organizations and 57, 281 international institutions and 15, 21, 23–28 emphasis on international plane 31–32 enforcement-based sub-approach 36–37 excessive positivism 32–33 state-centrism 30–31 state-centrist view 30–31 Nigerian experience of African human rights system and 103, 133 see also quasi-constructivism Convention on Bio-Diversity 53 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 105 corporal punishment Mozambique 246 South Africa 169 Cossman, Brenda 41, 42 courts see judicial system Cox, R. W. 15 critical theory 23 customary inheritance practices Bhe case (South Africa) 162–165, 180, 202, 203, 207, 278, 292 Ephraim v. Pastory (Tanzania) 241–242 Muojekwu and others v. Ejikeme and others (Nigeria) 104–105, 147, 164 Danielson, Astrid 77 Dankwah, E. V. O. 81, 229, 230 Dawood case (South Africa) 166–167, 181, 278, 292

INDEX

death penalty Nigeria 88, 120, 122–124, 146 Zamani Lekwot case 98–101, 124, 129, 134, 143, 144, 278, 287, 289–290, 291 South Africa Makwanyane case 168–169 Samuel Kaunda case 157–162, 183, 184–185, 193–194, 278, 292 defamation Potgieter en’n Ander v. Killan (South Africa) 170–171 democracy 22 demonstrations New Patriotic Party v. IGP (Ghana) 238–239, 252 Denmark 47 detention of people Nigeria Failed Banks Tribunal case 107–110, 111 Frank Ovie Kokori v. General Sani Abacha and four others (No. 3) 103–104 release of detainees 125, 131 State Security (Detention of Persons) Act 1984 130–131 Developmental Associations case (Benin) 237–238 dictatorships 56, 140 Nigerian see Nigeria diplomatic protection Samuel Kaunda case (South Africa) 157–162, 183, 184–185, 193–194, 278, 292 discrimination Hoffman v. South African Airways (South Africa) 170 Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (South Africa) 186 racial 179 Dlamini, C. R. M. 74, 79 Doctors for Life International 194, 204 Doebbler, Curtis 221 domestic violence Baloyi case (South Africa) 167–168, 201

327

Donnelly, Jack 28, 40, 44, 47–48, 67, 144, 281 DPP v. Pete (Tanzania) 242, 252 D’sa, R. 86 Duarte, Vera 72 economic rights 146, 152, 207, 217–218, 269 Ghana 251–252 effectiveness of human rights organizations African human rights system 4, 82–87, 87, 273 constitutive role of activist forces 285–287 hypothesizing measure of 293–295 quasi-constructivism and 57–59, 273–276, 287–293 reaching beyond state compliance measure 284–285 reducing emphasis on domestic analogy 276–279 reducing emphasis on textual appropriateness and/or institutional capacities 280–284 constitutive role of activist forces 285–287 constructivism and 57, 281 hypothesizing measure of 293–295 neo-liberalism and 54–55 quasi-constructivism and 57–59, 273–276, 287–293 reaching beyond state compliance measure 284–285 realism and 53–54 reducing emphasis on domestic analogy 276–279 reducing emphasis on textual appropriateness and/or institutional capacities 280–284 republican liberalism and 55–57, 280 efficiency of human rights institutions 50–53 Egypt 248–249 elitism 268–269 El-Sheikh, Ibrahim Badawi 144

328

INDEX

enforcement-centrism 35–37, 44–47 African human rights system 78–80 Enonchong, Nelson 248, 263 Ephraim v. Pastory (Tanzania) 241–242 Equatorial Guinea Samuel Kaunda case (South Africa) 157–162, 183, 184–185, 193–194, 278, 292 Eritrea 86 Essien, Udeme 83 Ethiopia 88 ethnography 298 European Convention on Human Rights 47, 50, 53, 55, 56, 70, 92 European Court of Human Rights 42, 45, 46, 276 European Court of Justice 42 executive branch of government Nigeria 116–127 acceptance of Commission investigative mission 117–119 endurance of openly condemnatory resolutions 120–122 modification of legislation 122 non-enforcement of press laws 125–126 release of detainees 125 setting up Nigerian National Human Rights Commission (NNHC) 126–127 suspension of trials and executions 122–124, 146 other African states 224–236 South Africa 177–186 expression, freedom of Human Rights Commission of South Africa v. SABC (South Africa) 172, 173, 182 Islamic Unity Convention case (South Africa) 172, 194 Laugh it Off Promotions case (South Africa) 174 Failed Banks Tribunal case (Nigeria) 107–110, 111 fair trial right Jaipal case (South Africa) 175–176

family life 190 Fawehinmi v. Abacha (Nigeria) 111, 113 Fawehinmi v. IGP (Nigeria) 221 feminism 15 Ferreira v. Levin NO (South Africa) 171–172 Fester, Gertrude 182 Finnemore, Martha 15, 24, 28, 29, 31, 32, 38, 58 Fourie case (South Africa) 184, 194, 204 Fox, Gregory 32 Franck, Thomas 32, 36, 38, 46 Freedom of Expression Institute (FEI) (South Africa) 204, 205 Gaer, Felice 77 Gambia 84, 250 Gbemre v. Shell Petroleum Development Co. Nigeria Ltd and others (Nigeria) 142, 147 Geldenhuys, B. L. 189, 190 Germany 47 Ghana 229 civil society actors (CSAs) 251–252 executive actions 230 legislation 249 New Patriotic Party v. IGP 238–239, 252 Gill, S. 15 Gittleman, Richard 69 government and the state executive branch see executive branch of government international human rights organizations (IHIs) and state-centrist view 49–50 international institutions and 13, 19, 20, 31–32 state-centrist view 30–31 judicial branch see judicial system legislative branch see legislation power relationships and 17 Greece 47 Grieco, Joseph 18 Gubbay, Anthony 255 Gumne and others v. Attorney-General (Nigeria) 108 Gutto, Shedrack 82

INDEX

Haas, Ernst 15, 24, 25, 26, 38 Haas, Peter 15, 24, 26, 27, 39 habeas corpus Nigeria 130, 131 Harrington, Julia 76, 84 Hasenclaver, A. 15, 20, 23 Hathaway, Oona 284 Helfer, Lawrence 32, 41, 42, 42, 45–46 Henkin, Louis 33, 42, 46 High Authority of Audiovisual and Communications case (Benin) 247 HIV discrimination 170 Hoffman v. South African Airways (South Africa) 170 homosexual people see same-sex partnerships Human Rights Commission (SAHRC) (South Africa) 162, 181–182, 202 Human Rights Commission of South Africa v. SABC (South Africa) 172, 173, 182 human rights education 85 Human Rights Institute of South Africa (HURISA) 178, 180, 182, 192, 196–197, 206 immigration Chairperson of the Immigration Selection Board v. Frank and another (Namibia) 240–241, 246 Dawood case (South Africa) 166–167, 181, 278, 292 India 283 indigenous peoples South Africa 182 information rights Case v. Minister of Safety and Security (South Africa) 172, 181 Shabalala case (South Africa) 173–174 inheritance Bhe case (South Africa) 162–165, 180, 202, 203, 207, 278, 292 Ephraim v. Pastory (Tanzania) 241–242 Muojekwu and others v. Ejikeme and others (Nigeria) 104–105, 147, 164 innocence, presumption of Nigeria 109

329

interests international institutions and 16, 25, 27 INTERIGHTS 252, 258 International Covenant on Civil and Political Rights (ICCPR) 115, 160 international human rights institutions (IHIs) 3, 12–14, 40, 61, 91 absence of holism in IHI literature 48–49 compliance 43–48, 92–93 enforcement-centrist sub-model 44–47 reaching beyond state compliance measure 284–285 voluntary compliance-based sub-model 47–48 effectiveness constitutive role of activist forces 285–287 constructivism and 57, 281 hypothesizing measure of 293–295 neo-liberalism and 55–57, 280 quasi-constructivism and 57–59, 273–276, 287–293 reaching beyond state compliance measure 284–285 realism and 53–54 reducing emphasis on domestic analogy 276–279 reducing emphasis on textual appropriateness and/or institutional capacities 280–284 emphasis on international plane 49–50 excessive positivism 49–50 focus on institutional architecture, capacity, and efficiency 50–53 image as weak and ineffectual 41–43 international institutions 12, 13, 61 compliance 33–39 blind spots in compliance-centrist approach 38–39

330

INDEX

international institutions (cont.) enforcement-based sub-approach 35–37 reaching beyond state compliance measure 284–285 voluntary compliance-based sub-model 37–38 constructivist view 15, 21, 23–28 emphasis on international plane 31–32 enforcement-based sub-approach 36–37 excessive positivism 32–33 state-centrism 30–31 see also quasi-constructivism human rights institutions see international human rights organizations (IHIs) liberal view 14, 21, 22–23 enforcement-based sub-approach 36 neo-liberal view 14, 16, 19–22 neo-realist view 14, 17–19 enforcement-based sub-approach 36 realist view 14, 16–17 enforcement-based sub-approach 36 international treaties South Africa 156–157 Treaty Supremacy cases (Nigeria) 110–114 Islamic Unity Convention case (South Africa) 172, 194 Italy 47 Jackman, Barbara 99 Jaipal case (South Africa) 175–176 Jewish Board of Deputies (South Africa) 194 judicial system 261–262 independence 262 Nigeria 94, 96–116, 149 Failed Banks Tribunal case 107–110, 111 Frank Ovie Kokori v. General Sani Abacha and four others (No. 3) 103–104 Muojekwu and others v. Ejikeme and others 104–105, 147, 164

Newspapers Registration Decree 43 of 1993 case 101–103, 125–126, 133, 134, 137, 143, 282, 287, 290–291 other more marginal cases 114 overall assessment of impact of African human rights system 115–116 Right to passport case 105–107 Treaty Supremacy cases 110–114 Zamani Lekwot case 98–101, 124, 129, 134, 143, 144, 278, 287, 289–290, 291 other African states 236–245 South Africa 156–177 Baloyi case 167–168, 201 Bhe case 162–165, 180, 202, 203, 207, 278, 292 Case v. Minister of Safety and Security 172, 181 Certification case 175 Dawood case 166–167, 181, 278, 292 Ferreira v. Levin NO 171–172 Fourie case 184, 194, 204 Garreth Prince case 176–177, 184, 192–193, 203, 258 Hoffman v. South African Airways 170 Human Rights Commission of South Africa v. SABC 172, 173, 182 Islamic Unity Convention case 172, 194 Jaipal case 175–176 Laugh it Off Promotions case 174 Makwanyane case 168–169 Potgieter en’n Ander v. Killan 170–171 Samuel Kaunda case 157–162, 183, 184–185, 193–194, 278, 292 Shabalala case 173–174 State v. Viljoen 169–170 State v. Williams 169, 246 Volks No case 165–166, 204, 207 Wittmann case 174 Kamminga, Menno 50, 141 Kargbo, Rhoda 260–261

INDEX

Kaunda (Samuel) case (South Africa) 157–162, 183, 184–185, 193–194, 278, 292 Keck, Margaret 31, 32, 38, 59 Kennan, George 17 Kenya 261 Kenyan National Commission on Human Rights (KNCHR) 233 Keohane, Robert 14, 18, 19, 20, 28, 30, 31, 38 Kibwana, Kivutha 70 Kingsbury, Benedict 34 Kissinger, Henry 17 Klotz, Audie 29, 31, 39 knowledge 16, 26 Koh, Harold 46 Kokori (Frank Ovie) v. General Sani Abacha and four others (No. 3) (Nigeria) 103–104 Korey, William 294 Koskenniemi, Martti 26, 35, 36, 42, 276 Krasner, S. 53 Kratochwil, Frederich 15, 24, 25, 32, 33 Kuesa v. Minister of Home Affairs (Namibia) 239–240, 252 Laugh it Off Promotions case (South Africa) 174 Law Commission (South Africa) 183, 202 legal profession Prince (Garreth) case (South Africa) 176–177, 184, 192–193, 203, 258 Legal Resources Centre (South Africa) 198–199, 204 legalism 26 legislation Nigeria 127–133 Civil Disturbances (Special Tribunal) Act 1987 81 Federal Military Government (Supremacy and Enforcement of Powers) Decrees 141–142 Newspapers Registration Decree 43 of 1993 101–103, 125–126, 133, 134, 137, 143, 282, 287, 290–291

331

Political Parties (Dissolution) Decree 1999 132–133 State Security (Detention of Persons) Act 1984 130–131 other African states 245–250 South Africa 180–181, 186–191 legitimacy deficit 268 Legro, Jeffrey 33 Lekwot (Zamani) case (Nigeria) 98–101, 124, 129, 134, 143, 144, 278, 287, 289–290, 291 Lesotho 229 liberalism see republican liberalism locus standi 86 Lubidla, E. N. 190 McGoldrick, Dominic 42, 48, 51 Madagascar 229 Magliveras, K. 79 Makwanyane case (South Africa) 168–169 Malawi 85, 119, 229, 235, 244 National Commission on Human Rights 234 Mali 229, 231 marriage immigration and Dawood case (South Africa) 166–167, 181, 278, 292 maintenance from estate of deceased partner Volks No case (South Africa) 165–166, 204, 207 same-sex partnerships Chairperson of the Immigration Selection Board v. Frank and another (Namibia) 240–241, 246 Fourie case (South Africa) 184, 194, 204 Marriage Alliance of South Africa 194 Martin, Lisa 20 Matli, Walter 32 Mauritania 227 Mazey, S. 15 Mbeki, Thabo 178 Mearsheimer, John 17, 18 media see newspapers

332

INDEX

Media Rights Agenda (MRA) (Nigeria) 102–103, 290–291 Mediterranean Action Plan on Pollution Control 26, 27 mercenaries Samuel Kaunda case (South Africa) 157–162, 183, 184–185, 193–194, 278, 292 minorities Afrikaner people 189–190 San people 182 Modise (John K.) v. Botswana 226–227, 252, 258, 291 Mohamed, Abdelsalam 71, 76, 84 Moravcsik, Andrew 21, 22, 31, 36, 41, 53, 54, 55, 56, 56, 60, 280 Morgenthau, Hans 17, 18 Mozambique 229, 246 Mugwanya, George 74, 84, 93, 244, 254 Muojekwu and others v. Ejikeme and others (Nigeria) 104–105, 147, 164 Murray, Christina 78 Murray, Rachel 70, 72, 73, 74, 84, 145 Murungi, Kairatu 261 Mutua, Makau 41, 42, 43, 49, 73, 79, 80, 81, 82, 89, 211, 277 Naldi, Gino 69, 79 Namibia 229, 254, 260 Chairperson of the Immigration Selection Board v. Frank and another 240–241, 246 Kuesa v. Minister of Home Affairs 239–240, 252 National Commission on Human Rights (KNCHR) (Kenya) 233 National Commission on Human Rights (Malawi) 234 Nemi (Peter) v. Attorney General of Lagos State and another (Nigeria) 96 neo-liberalism effectiveness of human rights organizations and 54–55 international institutions and 14, 16, 19–22 neo-marxianism 15

neo-realism international institutions and 14, 17–19 enforcement-based sub-approach 36 Netherlands 47 New Partnership for African Development (NEPAD) 210 New Patriotic Party v. IGP (Ghana) 238–239, 252 newspapers (Nigeria) civil society actors and struggle for press freedom 102–103, 136–138 Newspapers Registration Decree 43 of 1993 case 101–103, 125–126, 133, 134, 137, 143, 282, 287, 290–291 Ngoepe, Bernard 185 Nigeria 5–7, 57, 60, 61, 84, 88, 93–95, 153–154, 255, 262, 264–265, 297, 299 assessment of overall impact of African human rights system 141–147 civil society actors (CSAs) 2, 94, 95, 102–103, 104, 105, 113, 122, 125, 126, 128, 134–141, 142–143, 256, 257, 258, 259, 286 African Commission’s investigative mission and 118 Civil Liberties Organisation 105, 129 Constitutional Rights Project (CRP) 99–101, 102–103, 124, 125, 129, 136–138, 289–290 negative factors 151–152 positive factors 148–149, 150 press freedom and 102–103, 136–138 public attitudes and 138–141 Shelter Rights Initiative (Nigeria) 135 work of 134–136 cleavages in Nigerian society 149–150 executive action 116–127 acceptance of Commission investigative mission 117–119

INDEX

endurance of openly condemnatory resolutions 120–122 modification of legislation 122 non-enforcement of press laws 125–126 release of detainees 125 setting up Nigerian National Human Rights Commission (NNHC) 126–127 suspension of trials and executions 122–124, 146 judicial system 94, 96–116, 149 Failed Banks Tribunal case 107–110, 111 Frank Ovie Kokori v. General Sani Abacha and four others (No. 3) 103–104 Muojekwu and others v. Ejikeme and others 104–105, 147, 164 Newspapers Registration Decree 43 of 1993 case 101–103, 125–126, 133, 134, 137, 143, 282, 287, 290–291 other more marginal cases 114 overall assessment of impact of African human rights system 115–116 Right to Passport case 105–107 Treaty Supremacy cases 110–114 Zamani Lekwot case 98–101, 124, 129, 134, 143, 144, 278, 287, 289–290, 291 legislative action 127–133 Civil Disturbances (Special Tribunal) Act 1987 81 Federal Military Government (Supremacy and Enforcement of Powers) Decrees 141–142 Newspapers Registration Decree 43 of 1993 101–103, 125–126, 133, 134, 137, 143, 282, 287, 290–291 Political Parties (Dissolution) Decree 1999 132–133 State Security (Detention of Persons) Act 1984 130–131

333

positive factors on impact of African human rights system 148–151 Nigerian National Human Rights Commission (NNHC) 126–127 Nigerian Union of Petroleum and Gas Workers (NUPENG) 103 norms 27, 28 norm life-cycle 29 Nye, J. 31 Oberleitner, Gerd 77 Odinkalu, Chidi 70, 71, 76, 77, 78, 85, 89, 91, 96, 145, 253 Ogugu v. The State (Nigeria) 114 Okadigbo, Benedict 98 Okere, Obinna 69 Oloka-Onyango, Joe 71, 73, 81, 82, 91, 92, 145, 221, 222, 260, 265–266 Onuf, Nicholas 33, 40 Organisation of African Unity see African Union Oshevire v. British Caledonian Airways (Nigeria) 110 ouster clauses Nigeria 97, 104, 107–108, 113, 128, 129, 131, 132, 289 Pahad, Essop 188 passports Right to Passport case (Nigeria) 105–107 Peterson, V. S. 15, 40 Pityana, Barney 185 police Kuesa v. Minister of Home Affairs (Namibia) 239–240, 252 Political Parties (Dissolution) Decree 1999 (Nigeria) 132–133 positivism 32–33, 49–50 postmodernism 15 Potgieter en’n Ander v. Killan (South Africa) 170–171 power, international institutions and 16, 17–18, 20, 21 press see newspapers Prince (Garreth) case (South Africa) 176–177, 184, 192–193, 203, 258

334

INDEX

principled issue networks (PINs) 58 prisons 229–230 Chinamora v. Angwa Furnishers (Pvt) Ltd (Zimbabwe) 243 South Africa 181 Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (South Africa) 186 public opinion and attitudes 79, 260–261, 266 Nigeria 138–141 South Africa 214 quasi-constructivism effectiveness of human rights organizations and 57–59, 273–276, 287–293 international institutions and 21, 28–30 Nigerian experience of African human rights system and 103 racial discrimination 179 Rajagopal, Balakrishnan 298, 301 Ramgobin, M. 190 rationalism 14, 15, 24 realism effectiveness of international human rights organizations (IHIs) and 53–54 international institutions and 14, 16–17 enforcement-based sub-approach 36 reflectivism 15 reform proposals 280–281 African Charter of Human and Peoples’ Rights (ACHPR) 75–78 African Commission on Human and Peoples’ Rights 76–78 African Court of Human and Peoples’ Rights 76 religious freedom Prince (Garreth) case (South Africa) 176–177, 184, 192–193, 203, 258 Wittmann case (South Africa) 174 republican liberalism effectiveness of human rights organizations and 55–57, 280

international institutions and 14, 21, 22–23 enforcement-based sub-approach 36 Risse, Thomas 29, 31, 32, 38, 59 Ropp, Stephen 31, 32, 38 Rosendal, Kristin 53 Ruggie, John Gerard 15, 24, 26, 32, 40, 41, 277 Rwanda 88 Saffari, Abdallah 77 same-sex partnerships Chairperson of the Immigration Selection Board v. Frank and another (Namibia) 240–241, 246 Fourie case (South Africa) 184, 194, 204 San people 182 Saro-Wiwa, Ken 88, 124, 146 self-incrimination Ferreira v. Levin NO (South Africa) 171–172 Semple, J. A. 189 Senegal 227, 250 Shabalala case (South Africa) 173–174 Shelter Rights Initiative (Nigeria) 135 Shelton, Dinah 45, 48 Sierra Leone 260–261 Sikkink, Kathryn 28, 29, 31, 32, 38, 39, 56, 58, 59, 59, 60, 94 Sirleaf, Ellen 261 Slaughter, Anne-Marie 21, 24, 31, 32, 36, 39, 41, 42, 42, 45–46, 143 Smyth, John Jackson 194 Social and Economic Rights Centre and Centre for Economic Rights v. Nigeria 222, 266 Society for the Abolition of the Death Penalty in South Africa 162, 193 socio-economic rights 146, 152, 207, 217–218, 269 Sono, B. N. 189 South Africa 7, 60, 61, 88, 123, 155–156, 218–219, 254, 260, 264, 297 assessment of overall impact of African human rights system 141–147

INDEX

civil society actors (CSAs) 161, 164–165, 166, 167, 168, 177, 178, 180, 182, 191–199, 203–206, 208–209, 212, 214, 257, 258, 259 executive deliberation and action 177–186 judicial system 156–177 Baloyi case 167–168, 201 Bhe case 162–165, 180, 202, 203, 207, 278, 292 Case v. Minister of Safety and Security 172, 181 Certification case 175 Dawood case 166–167, 181, 278, 292 Ferreira v. Levin NO 171–172 Fourie case 184, 194, 204 Garreth Prince case 176–177, 184, 192–193, 203, 258 Hoffman v. South African Airways 170 Human Rights Commission of South Africa v. SABC 172, 173, 182 Islamic Unity Convention case 172, 194 Jaipal case 175–176 Laugh it Off Promotions case 174 Makwanyane case 168–169 Potgieter en’n Ander v. Killan 170–171 Samuel Kaunda case 157–162, 183, 184–185, 193–194, 278, 292 Shabalala case 173–174 State v. Viljoen 169–170 State v. Williams 169, 246 Volks No case 165–166, 204, 207 Wittmann case 174 legislative action and debate 180–181, 186–191 negative factors on impact of African human rights system 212–218 positive factors on impact of African human rights system 208–212 South African NGO Coalition (SANGOCO) 199, 205 standing (locus standi) 86 State Security (Detention of Persons) Act 1984 (Nigeria) 130–131

335

State v. Viljoen (South Africa) 169–170 State v. Williams (South Africa) 169, 246 Steiner, Henry 43, 67, 91, 92 Stephens, Beth 44 Sterling-Folker, Jennifer 16 strong cognitivism 24 structuralism 24 Sudan 227 supremacy of international law Treaty Supremacy cases (Nigeria) 110–114 Swaziland 88 Sweden 47 Switzerland 47 Sylvester, C. 15 Tanzania DPP v. Pete 242, 252 Ephraim v. Pastory 241–242 Themba, M. P. 188 Tigere, Patrick 261 Togo 123, 227, 230, 250 Toope, Stephen J. 27, 30, 33, 36, 37, 38 trade unions Frank Ovie Kokori v. General Sani Abacha and four others (No. 3) (Nigeria) 103–104 Trans-disciplinary approach 299 transnational advocacy networks (TANs) 58, 59 travel Right to Passport case (Nigeria) 105–107 treaties see international treaties Treatment Action case (South Africa) 197, 207 ‘trial within a trial’ State v. Viljoen (South Africa) 169–170 tribunals Nigeria Civil Disturbances (Special Tribunal) Act 1987 81 Failed Banks Tribunal case 107–110, 111

336

INDEX

Truth and Reconciliation Commission (South Africa) 194–195 Tulumello, A. S. 21 UAC of Nigeria v. Global Tranpsporte Oceanico SA (Nigeria) 111 Ubani (Chima) v. Director of State Security Services and Attorney General (Nigeria) 111 Udombana, Nsongurua 73, 75, 79, 81, 82, 222 Uganda 244 Ukhuegbe, Solomon 115, 254, 263 Umozurike, Oji 79, 127 United Kingdom 47, 92 United Nations Environmental Programme 26 Human Rights Committee (HRC) 41, 42, 48, 115 Security Council 26 values 26 Viljoen, C. L. 187, 189 Viljoen, Frans 83, 143, 237–238, 241, 243, 244, 250, 251, 254 Volks No case (South Africa) 165–166, 204, 207 Walker, R. B. J. 31 Waltz, Kenneth 18 Watson, Shand 41, 43, 44, 276, 277 weak cognitivism 24 Welch, Claude 68, 72, 77, 83, 87, 93 Wendt, Alexander 15, 23, 24, 30 Wittmann case (South Africa) 174 women 2, 76, 78, 87, 178, 179, 188–189, 198

citizenship Attorney General of Botswana v. Unity Dow 225–226, 236–237, 245, 252, 278 cohabitee’s rights Volks No case (South Africa) 165–166, 204, 207 domestic violence Baloyi case (South Africa) 167–168, 201 inheritance Bhe case (South Africa) 162–165, 180, 202, 203, 207, 278, 292 Ephraim v. Pastory (Tanzania) 241–242 Muojekwu and others v. Ejikeme and others (Nigeria) 104–105, 147, 164 Women’s Aid Collective (Nigeria) 105 Women’s Legal Centre (WLC) (South Africa) 162, 165, 166, 205 Wood, S. 21 Yadudu, Auwalu 120 Young, Oran 38 Zaire (now Democratic Republic of Congo) 85, 271 Zimbabwe 123, 123, 229, 250, 254, 261 Chinamora v. Angwa Furnishers (Pvt) Ltd 243 prisons 229 Samuel Kaunda case (South Africa) 157–162, 183, 184–185, 193–194, 278, 292 violence against white farmers in 187–188