Access to the African Court on Human and Peoples’ Rights A Case of the Poacher turned Gamekeeper.docx

《Access to the African Court on Human and Peoples’ Rights A Case of the Poacher turned Gamekeeper.docx》由会员分享，可在线阅读，更多相关《Access to the African Court on Human and Peoples’ Rights A Case of the Poacher turned Gamekeeper.docx（22页珍藏版）》请在第一文库网上搜索。

1、A Case of the Poacher Turned Gamekeeper21Access to the African Court on Human and Peoples Rights:A Case of the Poacher turned GamekeeperDan Juma*AbstractThe last two decades have witnessed significant advances in the human rights landscape in Africa.The period has witnessed a modest though steady gr

2、owth of human rights, reflected in the growth ofnorms and institutions for the protection and promotion of human rights in the continent. A recententrant to the growing institutional edifice, the frican Court on Human and Peoples Rights, standsout in particular.Although an invaluable addition to the

3、 machinery for the protection of human rights, therestrictive access to the Court may undermine the utility of the Court. Under the Protocolestablishing the Court, States Parties have automatic access to the Court, whereas individuals andnon-governmental organizations (NGOs) can only institute cases

4、 before it if the State Partyconcerned makes a declaration accepting the competence of the Court to receive such cases. Evenso, the Court still has discretion to receive such cases. This scheme of access to the Court defies theprimary raison dof international human rights law, namely to protect the

5、individual or groupsagainst inimical conduct of the state. Moreover, states have no incentive to refer human rights casesto international human rights tribunals. Put more bluntly, to rely on the predatory5 state to institutecases before the African Court may well be a case of the poacher turned game

6、keeper.1. IntroductionThe adoption of the African Charter on Human and Peoples Rights marked a watershed inAfrica history. Adopted t a time when most African states were either authoritarian orrfmu扁脸of 碗o1簿ylajthsvno&e血包rft可 thahufbMt rbcpwtci9significant progress has been registered in the human ri

7、ghts landscape in Africa. The periodhas witnessed a modest albeit steady development of human rights, reflected in the growthof norms and institutions for human rights protection and promotion. Of these 3* The author is currently the Acting Deputy Executive Director of the Kenya Human Rights Commiss

8、ion,Nairobi, Kenya. He is an Advocate of the High Court of Kenya and holds an M.A. in International Law andHuman Rights from Universite pour la Paix, Costa Rica and an LL.B, from University of Nairobi, Kenya. Hehas previously worked with the Constitution of Kenya Review Commission, the National Cons

9、titutionalConference, Law Africa and the Electoral Commission of Kenya.1 African Charter on Human and Pcolcs, Rights, adopted 27 June 1981, entered into force 21 Oct. 1986,O.A.U. Doc. CAB/LEG/67/3 Rev. 5, hereinafter the African Charter or the Charter.2 See R. Cohen et al., Hwan BJgb/s and Governanc

10、e in Africa (Gainesville, Florida: University Press of Florida,1993.)3 At the normative level, regional instruments and principles have been adopted under the aegis of Africanorganizations to strengthen the legal framework for the protection and promotion of human rights. Theseinclude the Protocol t

11、o the African Charter on Human and Peoples, Rights on the Rights of Women in Africa,adopted 11 July 2003, entered into force 25 Nov. 2005; African Charter on the Rights and Welfare of the Child,developments, the establishment of an African Court on Human and Peoples Rightsadopted l July 1990, entere

12、d into force 29 Nov. 1999; and the Convention Governing Specific Aspects ofRefugee Problems in Africa, adopted 9 Sept. 1969, entered into force 20 J une 1974. These instruments haveestablished monitoring mechanisms which compose the main legal infrastructure for human rights oversight inAfrica, alth

13、ough there are also non-treaty based institutions. See generally Cowpetlinw of Key Huwan RightsDocuments of the African Union (Cape Town: Pretoria University Law Press, 2005) and C. I leyns (ed) Humanmjv in Africay vol. 1 (Txidcn: Martinus Nijhoff Publishers, 2004). Protocol to the African Charter o

14、n Human and Peoples Rights on the Establishment of an African Court onHuman and Pcolcs, Rights, adopted June 1998, entered into force Jan. 2004, OAU DocOULEGEXPFCHPRPROT (III), hereinafter the African Protocol. Art. 1 of the Protocol establishesthe African Court on Human and Peoples, Rights, hereina

15、fter the African Court. Pursuant to the AfricanProtocol, the Assembly of I leads of State and Government of the African Union appointed Judges at its 6th()rdinar Session held in Khartoum between 23-24 Jan. 2006. See Assembly/Dec. 10() (VI) Decision onthe Election of J dges of the African Court on Hu

16、man and Peoples, Rights (Doc. EX.CL/241 (VII1). standsout in particular.Without doubt, the establishment of this Court is a significant advance in theinstitutionalization of human rights in Africa. Through its advisory and contentious5jurisdiction, the Court comes with the prospect of strengthening the African human rightssystem and e