Law, Democracy & Development - Special issue 1, January 2013

The roots of the African human rights system lie in the African Charter on Human and Peoples' Rights (Charter). Adopted in 1981, the Charter entered into force in 1986. Its treaty monitoring body, the African Commission on Human and Peoples' Rights (Commission), was set up in 1987. In 2012, the Commission celebrated 25 years of existence. It initially functioned under the political auspices of the Organisation of African Unity (OAU), but since 2002, within the ambit of the OAU's successor, the African Union (AU). This overview focuses on the African Charter and the Commission, and covers aspects of 25 years of the Commission's evolution.

The creation of the African human rights system with the adoption in Nairobi, Kenya, in 1981 of the African Charter on Human and Peoples' Rights (African Charter) under the auspices of the former Organization of African Unity (OAU) and its entry into force on 21 October 1986, was a culmination of the yearning of many African civil society and human rights organisations to have a home-grown human rights mechanism that works to promote and to protect the human rights of the peoples of Africa. It is now common knowledge that the 1961 International Commission of Jurists' "African Conference on the Rule of Law" was one of the early fires in this regard. One of the resolutions of the conference (the famous "Law of Lagos") was in effect the creation of a human rights court under a proposed "African Convention on Human Rights", which "was to lay down the basis for future efforts for the establishment of rules and mechanisms for the regional promotion and protection of human rights in Africa", and "to give full effect to the Universal Declaration of Human Rights." Granted that it took 20 years after the "Law of Lagos" for the African Charter that sets the tone for a regional human rights regime to be adopted, its adoption was a welcome development. During the early period of this development, the African Commission on Human and Peoples' Rights (African Commission) was the only organ mandated under the African Charter to: 1) engage in promoting human rights; 2) protect human rights; 3) examine state reports; and 4) provide interpretation of the Charter. As part of its protection mandate, the African Commission innovated the hearing of individual complaints for human rights violations brought to it by victims of such violations or their representatives.

The right to adequate housing holds a central place within the international human rights system. It is an important basic human right, "of central importance for the enjoyment of all economic, social and cultural rights". Also, the right is linked to other rights, such as, to non-discrimination, dignity, privacy, freedom of association, freedom of expression, social security, education, health, work, vote, and the right to an adequate standard of living, which are essential if the right to adequate housing is to be realised and maintained by all groups in society. The right to adequate housing therefore clearly expresses the principle of interdependency of rights, which "suggests that there is a mutually reinforcing dynamic between different categories of rights in the sense that the effective implementation of one category of rights can contribute to the effective implementation of other categories of rights and vice versa". Though Quane's exposition limits the dynamic to different categories of rights (that is, civil and political rights, on the one hand, and socio-economic rights, on the other), the concept should also be understood as suggesting a mutually reinforcing dynamic between various rights including those within one category (that is, there can be a mutually reinforcing dynamic between various civil and political rights or between various socio-economic rights). Scott defines interdependence in the sense of organic interdependence ("one right forms a part of another right and may therefore be incorporated into that latter right") and related interdependence ("the rights in question are mutually reinforcing or mutually dependent, but distinct"). It should be emphasised that the interdependence of human rights can be in relation to the actual content of rights and not just with respect to "mutual reinforcement and equal importance" of rights.

It must be regarded as a peculiarity that the African Charter on Human and Peoples' Rights (the Charter) makes no specific mention of prisoners' rights and that these rights have to be inferred from an overall reading of the Charter, and in particular Articles 4-6. The reasons for this lie in the history of the drafting of the Charter and the political context at the time and will not be the focus of the discussion here. Other regional instruments are more specific, for example, the American Convention on Human Rights, state "[a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person". With regard to the Charter it must therefore be concluded that prisoners' rights are weakly defined and much room is left for interpretation.

International law plays an important role in framing the content of national law. This is evident with regard to norms of environmental law, crime prevention and human rights, to name just a few areas where norms adopted by global and regional organisations influence, and to a certain extent harmonise, national legal and policy frameworks.

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The focus of this article is on how international human rights law influences the content of national law whether, for example, through direct application of international human rights law by national courts or through inspiring new national legislation based on international instruments. It also considers the impact of "international expert" made law, such as, the decisions of regional and UN quasi-judicial bodies and courts. The article provides an overview of these issues in relation to Africa highlighting pertinent examples from national case law and legislation illustrating particular points.

In 2012 the African Commission on Human and Peoples' Rights celebrated its 25 years of existence. The Commission was established pursuant to the African Charter on Human and Peoples Rights, which came into force in 1986. Since its establishment the Commission has played significant roles in the advancement of human rights in the region. While it can be argued that the formative stage of the Commission was characterised by administrative inefficiency and lacklustre performance, the Commission would seem to have improved at the latter stage of its existence. Indeed, the Commission has handed down a number of important and landmark decisions relating to the socio-economic rights guaranteed in the Charter. The African Charter remains one of the few regional human rights instruments that guarantee both civil and political rights and socio-economic rights as enforceable rights. In addition, the African Charter remarkably contains provisions safeguarding people's rights, which is a rare feat when compared with other regional human rights instruments. The coming into force on 25 November 2005 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol) marks a momentous occasion in the annals of the promotion and protection of human rights in Africa. The African Women's Protocol contains a number of radical and progressive provisions relating to the rights of women, thereby providing an opportunity for the African Commission to redress human rights violations experienced by women.

Bethwell A Ogot argues that the pursuit of development without incorporation of a socio-economic agenda is bound to be counter-productive. During the colonial period, the white minority rulers pursued a development agendathat involved the exclusion as well as exploitation of the native population. Colonial laws and policies excluded Africans from active participation in the economic as well as political life of their communities. The most productive parcels of land were expropriated by the state and given to the white settlers and the natives were excluded from the productive sectors of the economy to avoid competition and conflicts with the white settlers. This resulted in the aggravation of social tensions and generated disharmonies, gross inequalities, poverty and social conflicts and precipitated a very vicious struggle for independence. For this reason, one would have expected the pursuit of socio-economic rights to have been chosen as the primary objective of the independent state, but this was not to be.

This article aims to show, through an overview of the experience of the Centre for Applied Legal Studies ('CALS'), that international law forms an integral part of human rights litigation in South Africa. It is apparent from the experience of CALS that international law, including international human rights law, in its various forms, such as, case law, international conventions and treaties, as well as guiding principles, has a key role to play in aiding domestic courts to interpret constitutionally recognised rights. The experience of CALS further illustrates that these international laws and principles have an important role to play in assisting litigators and individuals in arguing for the basic recognition of rights that may not be recognised in domestic jurisdictions.

Africa is a continent with its own unique peculiarities and a complex cycle of problems: poverty, hunger and malnutrition; deeply rooted gender inequalities and inequities; discrimination based on ethnic differences; marginalisation of minorities; diseases; persistent civil strife; abuse of state power and resources as shown by arbitrary detentions, extra-judicial executions, and rampant corruption; foreign exploitation of resources; as well as impunity and many other forms of ills that frustrate meaningful enjoyment of human rights by all. Confronting these ills requires a reinforcement of multiple strategies and efforts by various stakeholders including states and civil society.

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The emergence of the African Charter on Human and Peoples' Rights (ACHPR) and a proliferation of kindred instruments establishing bodies with the mandate to handle communications alleging violations of human rights that have not been effectively redressed by national jurisdictions, stands as a set of concrete steps showing a semblance of commitment by states towards respect and promotion of human rights on the continent. In the main, the existence of these bodies with flexible practices and procedures for handling complaints provides an excellent opportunity for litigation to be used for the vindication of rights where domestic systems either fail, or are reluctant to remedy violations. To date, litigation before supra-national bodies is spearheaded by non-governmental organisations (NGOs) acting on behalf of individual victims or indeterminate numbers of victims.