African Human Rights Yearbook, 2022

Under exceptional circumstances, international (human rights) courts issue orders on provisional measures preventing a party or parties before them from taking some actions pending the final determination of a case. The main purpose of such orders is to avoid a situation where the final disposition of a matter is pre-emptively rendered fully or partly meaningless by the conduct of a party. Article 27 of the Protocol Establishing the African Court on Human and Peoples’ Rights also envisages the possibility where ‘in cases of extreme gravity and urgency’, the Court may adopt provisional measures to ‘avoid irreparable harm to persons’. The African Court on Human and Peoples’ Rights (Court), relying on this provision, has thus far issued about 50 orders of provisional measures, all of which were against respondent states. This article interrogates the Court’s practice in this regard, with the view to fleshing out its jurisprudential inconsistencies and proposing recommendations to rectify the occasional misapplication of the procedure. Close scrutiny of the Court’s jurisprudence reveals not only glaring discrepancies in approach but also, at times, unnecessary recourse to these measures even when situations do not necessarily warrant their adoption. As evidenced by the backlash from some states, which have openly expressed their refusal to comply with the Court’s orders, the unwarranted use of provisional measures is likely to render the procedure ineffective and may also negatively affect the legitimacy of the Court in the eyes of its creators, the states. Therefore, the Court should fully and strictly adhere to the legal and factual conditions required to adopt provisional measures and always be alive to the intended purpose and nature of provisional measures. The Court particularly needs to adopt a balanced approach without being too liberal or too strict, as this would be overstepping its power or abdicating its responsibility to protect human rights.

Netherlands Quarterly of Human Rights, 2010

Anyone who proves that he or she is in a situation of danger and who is a potential victim of a violation of a right set forth in the American or the European Convention on Human Rights may be protected by interim measures. Interim measures in the human rights systems may be defined as an instrument, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency, which a favourable final judgment would therefore not be able to undo. They result in protection offered by the State in compliance with the legally binding order of the Inter-American or European Court on Human Rights. While this legal figure is nowadays applied more and more frequently and in most cases the American and European countries have complied with the order of their respective Court of Human Rights, the question that this contribution would like to answer is what the legal consequences of incompliance are and whether the difference as to the legal basis of the interim measures in both human rights systems has influenced the legal effect that the respective Courts have given to non-compliance with the measures. After an overview of the case-law, it will be shown that in fact each regional system has given different legal consequences to

ABSTRACT This paper “HOW RIGID IS THE RIGIDITY OF THE RULE ON THE EXHAUSTION OF LOCAL REMEDIES UNDER THE AFRICAN HUMAN RIGHTS MECHANISMS” seeks to give a detailed explanation on the applicability of the rule on the exhaustion of local remedies under the African Human rights system. In it you will see the rigidity of the rules and the reasons why the requirement can never be dispensed with for any reason. It equally shows how the African human rights mechanisms have made concrete efforts in watering down the rigidity of the rule but its sacredness still remains fundamental as it constitutes the bedrock for the admissibility of communications in these mechanisms. Author Ashu Hailshamy O ESQ. (LL.B Hons University of Buea, B.L Hons The Gambia Law School) Barrister and Solicitor of the Supreme Court of The Gambia Legal Intern, Institute for Human Rights and Development in Africa (IHRDA), Banjul The Gambia. Email: ashu.shamy@yahoo.com Tel: +220 2615598

Netherlands Quarterly of Human Rights, 1998

In 1988 the Organisation of African Unity adopted a Protocol top the African Charter on Human and Peoples’ Rights establishing an African Court on Human and Peoples’ Rights. This development addresses one of the fundamental flaws in the institutional system for the protection of human rights in Africa since the Charter entered into force in 1986. The article analyses the provisions of the Protocol from a legal perspective and draws comparisons with other regional human rights judicial organs. The conclusion is reached that in principle the Court does not on the whole compare unfavourably with its European and American counterparts. It can only be hoped that when the Protocol is ratified and comes into force that the Court will be an effective guarantor of human rights in a continent that has been wrecked by abusive state behaviour.

The Routledge Handbook on Extraterritorial Human Rights Obligations, 2021

2014

The African Court on Human and Peoples' Rights was established by the 1998 Protocol to the African Charter on Human and Peoples' Rights. On 2 June 2010, its Rules of Court came into force. Rules of procedure are designed to supplement and fill in any gaps in the parent treaty. They are an essential part of the workings of many international bodies, including judicial organs. These Rules, which have a bearing on important aspects of the Court's functioning, are discussed in this article. The article does not undertake an exhaustive analysis of the whole set of Rules; it focuses on those Rules that may help to clarify or not, as the case may be, any obscurities or difficulties associated with the parent Protocol. The contribution covers the Rules pertaining to the composition of the African Human Rights Court; the Court's contentious procedure; and the Court's advisory opinions mandate. In the discussion, the Court's Rules are linked to those of the African Com...

This case-note examines the 25th March order of the African Court for the provisional measures against the Libyan Jamahirya. It is a decision that could have remained unnoticed: there was no realistic perspective of enforcement, whilst the measures ordered by the Court were “necessarily provisional in nature and would not in any way prejudge the findings the Court might make on its jurisdiction” (para 24 of the judgement). However, as this article argues, the dynamism demonstrated by the Court vis-à-vis the urgency of the situation in Libya, aligning with other international mechanisms for Human Rights protection, is of a particular interest, showing that the Court wishes to differentiate itself from the more politicised organs of the African Union. We could therefore suggest that the Court would demand a more substantial role in the field of Human Rights protection in the future, especially in the light of the prospective merging with the African Court of Justice.

2017

The 'Achilles' heel' of international and regional human rights monitoring bodies could be identified in the lack, or poor levels, of implementation of their findings at national levels. Even when these bodies' decisions are judicially binding, national states still show a certain reluctance to fully implement their outcomes. This research brief focuses in particular on the African human rights system. It briefly overviews its principal human rights monitoring bodies, i.e. the African Court and Commission, and seeks to decipher the reasons behind the poor implementation of their findings. The challenges and opportunities arising from its advanced institutional and normative architecture are highlighted, together with potential recommendations that could further advance and increase compliance at the national level.

African Human Rights mechanisms, 2018

Regional human rights systems, consisting of regional instruments and mechanisms, play an increasingly important role in the promotion and protection of human rights. Regional human rights instruments (e.g. treaties, conventions, declarations) help to localize international human rights norms and standards, reflecting the particular human rights concerns of the region. Regional human rights mechanisms (e.g. commissions, special rapporteurs, courts) then help to implement these instruments on the ground. Currently, the three most well-established regional human rights systems exist in Europe, the Americas and Africa. Following the end of the Second World War, the international community worked towards developing an international system for the promotion and protection of human rights that is binding on member states. With a view to attaining such goal, the international human rights system developed human rights norms that apply across regimes and transcend geographical confines. The United Nations emerged as a leading organ in the universal human rights movement. Parallel to the UN, regional systems have emerged in different parts of the world (Europe, America and Africa) and contributed to the universal human rights discourse. It is believed that the regional systems were created to address gaps and inadequacies that were existent in the international system. Alleged normative disconnect between the universal standards and the realty at the regional level was often viewed as a reason that necessitated the creation of regional systems. It is argued that an international system could sometimes be too far and has to leave some space for regional peculiarities. It seems that these were the considerations that led to the creation of an African regional system for promotion and protection of human rights. This paper will Critically examine the African regional human rights system embodied in the African Charter on Human and Peoples’ Rights