n African Human Rights Law Journal - The right to an effective remedy under the African Charter on Human and Peoples' Rights
|Article Title||The right to an effective remedy under the African Charter on Human and Peoples' Rights|
|© Publisher:||Pretoria University Law Press (PULP)|
|Journal||African Human Rights Law Journal|
|Author||Godfrey M. Musila|
|Publication Date||Jan 2006|
|Pages||442 - 464|
The question of remedies lacks clarity in international human rights law, in particular under the African Charter on Human and Peoples' Rights. Yet, no protected right would have any meaning to its claimants without the provision for effective mechanisms to give effect to it, including an effective remedy when breached. The very concept of a right carries with it a duty to redress its violation. While the African Charter does not contain a specific provision on the right to an effective remedy, a somewhat rudimentary jurisprudence and practice has emerged through 'situational' interpretation. This article considers the chequered practice of the African Commission with regard to this right under the African Charter, arguing that the 'remedies jurisprudence' from the Commission lacks in theorisation, is inconsistent and unco-ordinated. As such, the African Commission's laudable efforts in elaborating substantive Charter standards are not complemented by a reasoned remedies jurisprudence. The article outlines the right to effective remedies in two respects. It reviews generally the African Commission's jurisprudence specific to this right with a view to establishing its thinking. In this regard, because of the focus of the African Commission's jurisprudence, the article pays more attention to domestic remedies as opposed to locating this jurisprudentially in international human rights law generally. By reviewing the practice of the African Commission in respect of the communications procedure, which it concludes as being for the most part deferential to states, it evaluates the Commission's effectiveness as a forum of recourse for human rights violations. It also considers, in an abridged manner, how the Protocol to the African Court on Human and Peoples' Rights may change, if at all, the regime on remedies under the Charter.
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