By Joy Ndubai
In the wake of the latest decision of the African Commission on Human and Peoples’ Rights (African Commission) on Zimbabwe, the growth of the African Court on Human and Peoples’ Rights (African Court), the shutting down of the Southern African Development Community (SADC) Tribunal, and the increasingly important function human rights has had on the African continent, it has become vital to understand the roles of States and institutions in supporting this discourse.
Concerned with raising awareness about the African Court and the African Commission through her recently established organisation, ARC, Gillian Higgins takes a look at Frans Viljoen’s book, International Human Rights Law in Africa, which highlights the duty of states and institutions to assist in the realisation of human rights in Africa. Higgins examines the usefulness of this publication in providing lawyers, students and academics with an introduction and guide to regional adjudication and protection of human rights in Africa.
Viljoen begins by recognising four levels at which the duty to assist in the realisation of human rights arises: global, regional, sub-regional and national. Viljoen proceeds to discuss the responsibility of each of the four levels by dividing the book into four parts addressing each one.
In his analysis of the role of the United Nations (UN) organs and agencies in realising human rights in Africa, ‘the Global level’, Viljoen highlights the important role of specialised financial agencies and judicial organs in protecting and promoting human rights on the continent. He states that the “UN’s influence has been particularly pervasive in Africa: its efforts supplemented those of weak state institutions, it used its moral authority to confront and curb serious and persistent human rights violations; and it promoted adherence to human rights”. It is imperative to recognise the role of the UN in combating human rights violations in conflict-ridden areas whilst understanding the degree of interference vis-à-vis a State’s sovereignty. The author acknowledges that the “myriad of UN agencies and institutions have not served as an adequate catalyst to jerk the global consciousness into action, and have not succeeded in making a marked difference to the material realities on the African continent”.
On the regional level, Viljoen considers the African Union (AU), and the organs and human rights instruments functioning under its aegis. A coherent guide to the African Commission and African Court is provided in Chapter 6, 7, 8 and 10. Viljoen draws attention to the African Commission’s protective and promotional mandate, and offers practical examples of making a State, non-governmental organisation (NGO), or individual communication. He further elucidates the relationship between the Commission, NGOs and national human rights institutions. Emphasizing the complimentary role of the African Court to the African Commission, a background to the African Court is presented alongside its organisation and functioning as well as the relationship of the two organs. The African Commission is the only means of redress for those States that have not ratified the Protocol on the African Court or made the required declaration under Article 34(6). In light of this, Viljoen discusses the jurisdiction of the Court and standing to bring a matter as well as the possibility of referral by the African Commission. Viljoen offers a practical introduction to admissibility, access and jurisdiction of the Court and the Commission. In closing, he analyses the challenges facing the African Court: enforcement; lack of recognition; and the small number of cases being heard.
The book then considers the sub-regional level by investigating the realisation of human rights in Africa through sub-regional institutions. Viljoen points out that the “main objective of regional integration is to improve the welfare of the people in the participating countries”. This is followed by an examination of sub-regional bodies and the ‘judicialisation’ of human rights in Regional Economic Committees. A brief analysis of the SADC (Southern African Development Community) conveys this judicialisation, although the shutting down of the SADC Tribunals has been a dampening on the growth of the judicialisation process. However, in the final part, ‘the National level’, Viljoen recognises that the domestic implementation of IHRL has been the real test. What must be examined is “the positioning of IHRL in the hierarchy of the municipal legal order and whether the domestic courts apply IHRL norms in their decisions”.
Such academic focus is valuable for the plight of human rights in Africa. In particular, in the context of the African Commission and the African Court it is imperative that there is widespread understanding of the functioning of both organs. Viljoen provides a coherent examination of the human rights discourse on the African continent and rightly recognises the importance of global, regional, sub-regional and national support in order to promote and protect human rights.
F. Viljoen, International Human Rights Law in Africa,Oxford University Press (2012)