Invigorating the African System on Human and Peoples' Rights through Institutional Mainstreaming and Rationalisation
| DOI | 10.1177/016934410902700402 |
| Published date | 01 December 2009 |
| Author | Morris Kiwinda Mbondenyi |
| Date | 01 December 2009 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 27/4, 451–483, 2009.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 451
PART A: ARTICLES
InVIGORaTInG THe afRICan
sysTeM On HuMan anD PeOPles’
RIGHTs THROuGH InsTITuTIOnal
MaInsTReaMInG anD RaTIOnalIsaTIOn
M K M*
Abstract
e Af rican system on human and peoples’ rights ha s encountered a proliferation of
new inst itutions, programmes and initiatives since the end of the second mil lennium.
is may partly be attributed to the emergence of the African Union (AU), which is more
receptive and attuned to human rights than its pred ecessor the Organisation of African
Unity (OAU). e proliferation of human rights institutio ns in the region, however, has
some disadvantages. In the main, the mandates and functions of some of the institutions
overlap, resulting in unnecessary duplic ation. e main thesis of this contribution is
that, for the regional human rights system to be eec tive, institutional mainstreaming
and rationali sation are a prerequisite. e failure to mainstream an d rationalise the
subsisting and e merging instit utions will most likely ent rench the weaknesses of the
regional human rights system. rough an in-depth analysis of the mandates and
functions of some of its institutions, this contribution systematically proposes some
possible strategies for rationali sing the regional human rights system.
1. INTRODUCTION
e developments registered by the African system on human and pe oples’ rights
over the last few decades are a clear indic ation and a positive sign that the syste m
is g radually moving towards succes s. e complete success of the system, however,
calls for a closer relationship amongst al l its i nstitutions. ese institutions should
complement rather than compete with one another; the relationship bet ween them
* Postdoctoral Fellow and Programme Associate, Law, Justice and Development in A frica
Programme , Univer sity of Wit watersrand Law School, Johannesbu rg, South Africa. React ions:
Morris.Mb ondenyi@wits.ac. za. Unless ind icated otherw ise, all i nternet sites were la st accessed on
30 October 200 9.
Morris Kiwi nda Mbondenyi
452 Intersentia
should b e one of collaboration, as disting uished from that of control.1 Although it
is encourag ing to note that the syst em has made some positive contributions in the
sphere of international human rights law in its relatively short period of ex istence,
there is an emerging trend of i nstitutional proliferation that needs to be address ed.
is is because the ex isting and emerg ing institutions t end to overlap and duplicate
each other’s mandates and funct ions.2
It is therefore necessary to mainstream and rationalise the existing regional human
rights institutions in a way that they will complement and not duplicate or compete with
each oth er. In this contex t, ‘mainstreaming’ refers to t he process of consolidating the
regional human rig hts mechanisms within the A frican Union (AU) framework.3 e
AU, as the ‘parent’ institution, would therefore hold the central place in ensur ing the
co-ordination and s ynergy of these mechan isms. Rationalisation, on t he other hand,
would involve dening the ‘inter-personal’ relationships and synergies between the
human rights mechanisms in order to minimis e or overcome overlaps and duplication
of functions and ma ndates. In other words, while mainst reaming intends to improve
the ‘vertical relationship’ between the AU and regional institutions with human rights
responsibility, rationalisation will harmonise the ‘ horizontal relationship’ between
these human rig hts institutions.
e main intention of this article is to propose possible strategies of mainstream ing
and rational ising the Africa n human rights system. e article begins with a review
of the den ition and scope of the Africa n human rights system then proce eds to
analyse the mandates and funct ions of some of its key enforcement in stitutions.
Before proposing possible strategies of rationalisation, the article elucidates the extent
to wh ich some of the i nstitutions overlap and duplicate each other’s functions and
mandates. e article concludes w ith some general recommendations on t he way
forward.
2. A REVIEW OF THE DEFINITION AND SCOPE OF THE
AFRICAN HUMAN RIGHTS SYSTEM
e expression ‘African system on human and peoples’ rights’ refers to the regional
system of norms a nd institutions for enforcement of human and peoples’ rights in
1 See Bai mu, E ., ‘Huma n R ights in NE PAD and Its Implications for the African Human Rig hts
System’, African Human Rig hts Law Journal, Vol. 2, No. 2, 20 02, pp. 301–319, at p. 318.
2 Kithure, K., ‘Overlaps in the African Human Rights System’, in: Viljoen, F. (ed.), e African Human
Rights Syste m: Towards the Co-e xistence of the African C ommission on Hum an and Peoples’ R ights
and the Af rican Court on Human and Peop les’ Rights, I nternational Com mission of Juri sts, Kenya
Section, Nai robi, 2006, pp. 123–150, at p. 141.
3 See also this position in: G utto, S., ‘e R eform and Renewa l of the Af rican Regiona l Human and
Peoples’ R ights Syst em’, African Human Right s Law Journal, Vol. 2, No. 2, 2001, pp. 175–186, at
pp. 181–184.
Invigoratin g the African Syst em on Human and Peoples’ Rig hts
Netherlands Q uarterly of Human R ights, Vol. 27/4 (2009) 453
Africa. ere appears to be uncertainty on the scope and denit ion of this system.
Gutto, for example, argues that a d istinction should be made between the broader
‘African human rights system’ and the narrower ‘African Charter system’.4 Accordingly,
whereas the African Charter system centres around t wo enforcement institutions
– the Afr ican Comm ission on Human and Peoples’ Rights (hereaer t he ‘African
Commission’ or ‘Commission’) and the African Court on Human and Peoples’ Rights
(hereaer ‘African Court’ or ‘Court ’) – the African huma n rights system goes beyond
to include the ‘political ins titutions’ and other organs created under the AU.5
Gutto’s observations could be faulted because t he African Charter, which is at the
core of his so-called ‘Africa n Charter system’, is a very import ant instrument of the
broader ‘African human rights system’, hence the latter cannot be construed separately
from the former. Secondly, it w ill not be correct to v iew the ‘African Charter s ystem’
distinct ly from the pan-continenta l ‘polit ical institutions’ principally because the
latter seem to anchor the former. is position is conrmed by the fact that the African
Charter eectively puts the African Commi ssion under the control of the Assembly of
the Head of State and Government (AHSG), which is a regional ‘political instit ution’.6
Again, just before the inception of the AU, the former Organisation of Afr ican Unity
(OAU) Council of M inisters called for t he incorporat ion into the union, ‘organs,
institutions/bod ies which have not been specica lly mentioned in the Constitutive
Act .’7 is explains why the AU Assembly, at its rs t ordinary session, decided that,
‘the African Comm ission on Human and Peoples’ Rights and the African Com mittee
of Experts on the Rights a nd Welfare of the Child shall hencefort h operate within the
framework of the Afr ican Union.’8
ese are just a few i llustrations of t he links a nd synergies bet ween the regional
political institut ions and the Africa n Cha rter system, w hich ma kes it dicu lt to
conclude they operate disti nctly from each other. As a variant of Gutto’s proposition,
I consider the Afric an human rights system as t he complex-whole that embodies two
inter-related components, namely the ‘politic al’ (AU-based) and the ‘legal’ (African
Charter-based) components.9 While the former is more concerned with regional
politics than w ith human rights, the latter is w holly involved in human rights aairs .
e conuence of the two components, however, is their involvement in regional
4 Ibidem, p. 176.
5 Ibidem, p. 184.
6 See Article 58 of the Afr ican Char ter on Human a nd Peoples’ Rig hts, adopted 27 June 1981, OAU
Doc. CAB/LEG/67/3 rev. 5, 21 International Legal Materia ls 58 (1982), entered into force 21 October
1986.
7 Quoted in: Udomba na, N., ‘ e institut ional str ucture of the Afr ican Union’, Cal ifornia Western
Internationa l Law Journal, Vol. 33, No. 1, 2002, pp. 69–135, at p. 84.
8 Idem.
9 With regard to thi s arran gement, see the obs ervations in Baimu , E., Human Right s Mechanis ms
and St ructures under N EPAD and the Afr ican Union: Emerging trends towards proliferation and
duplication, Occasio nal Paper 15, Centre for Human R ights University of Pretori a, Pretoria, 2002 .
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