On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.12 n.1 Pretoria 2012
Abadir M Ibrahim
JSD Candidate, St Thomas University School of Law, United States of America
When the African Union was established, replacing the Organisation of African Unity, many were enthusiastic that it would champion the cause of human rights and democracy, one of the areas in which its predecessor had failed. Among the reasons for optimism was the fact that the African Union's Constitutive Act was a lot more empathetic for the cause of human rights and democratic ideals. This article contends that, while the Constitutive Act might be potentially important, it is but one among many conditioning factors for the Union's actions. The article argues that the most important determining factor for the Union's success or failure is the human rights track record of member states and the perceived or real dependence of elites within these states on human rights violations. Other conditioning factors, such as international legal obligations created by the Constitutive Act and other treaties, pressure from pan-African sentiment within the AU, and pressure from the AU's human rights organs play only a secondary and a comparatively minor role in affecting the AU's behaviour.
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* LLB (Addis Ababa), LLM (Intercultural Human Rights) (St Thomas), LLM (International Law) (Addis Ababa); email@example.com
1 an Union ASS/AU/Decl 2 (I), Durban, South Africa, 10 July 2002; see paras 8 & 16, http://www.africa-union.org/Official_documents/Decisions_Declarations/durban%202002/Durban-Ass-AU-decl2.pdf (accessed 31 January 2012). However, scepticism has been expressed about whether a change in the institution's constitutive document and name (dropping the 'O' from the OAU they teased) would guarantee that the AU would clean up the former's untidy practice in the protection and promotion of human rights. See eg the reaction of African press outlets, who are rather unconvinced, that the new AU is any different from its predecessor; 'Africa's press sceptical about Union' BBC 9 July 2002, http://news.bbc.co.uk/2/hi/africa/2117997.stm (accessed 14 December 2009); E Harsch 'African Union: A dream under construction. Planners of new continental organisation ponder design, encounter skepticism' (2002) 16 Africa Recovery 1 http://www.un.org/ecosocdev/geninfo/afrec/vol16no1/161afrun.htm (accessed 12 January 2010).
2 See arts 3(f), (g), (h), (j), (k) & (n) of the AU Constitutive Act.
3 Ben Ali of Tunisia, Hosni Mubarak of Egypt and Gaddafi of Libya were in power for 23, 30 and 40 years respectively before they were removed from power. See M Eltahawy 'Tunisia's jasmine revolution' Washington Post 15 January 2011; M Slackman 'A brittle leader, appearing strong' New York Times 11 February 2011; [ Links ] Y Saleh & B Rohan 'Libya declares nation liberated after Gaddafi death' Reuters 23 October 2011. [ Links ]
4 Since this article is not a jurisprudential piece, it does not attempt to defend or explain the policy-oriented method. For a comprehensive statement of the policy-oriented method, see HD Lasswell & MS McDougal Jurisprudence for a free society: Studies in law, science and policy (1992); [ Links ] also generally see WM Reisman et al 'The New Haven school: A brief introduction' (2007) 32 Yale Journal of International Law 575; [ Links ] S Wiessner & AR Willard 'Policy-oriented jurisprudence and human rights abuses in internal conflict: Toward a world public order of human dignity' (1999) 93 American Journal of International Law 316. [ Links ] In this author's opinion, a very brief but one of the best expositions of the policy-oriented approach is contained in JN Moore 'Prolegomenon to the jurisprudence of Myres McDougal and Harold Lasswell' (1968) 54 Virginia Law Review 662.
5 These documents are available at http://www.africa-union.org/root/AU/Documents/Treaties/treaties.htm; see R Murray 'International human rights: Neglect of perspectives from African institutions' (2006) 55 International and Comparative Law Quarterly 193 197-203 (describing the potential for these instruments and the jurisprudence under them for mainstream international human rights law).
6 List of Countries that have Signed, Ratified/Acceded to the African Charter on Democracy, Elections and Governance 21 May 2012, http://www.au.int/en/treaties/status.
7 VO Nmehielle The African human rights system: Its laws, practice and institutions (2001) 170-183; also U Essien 'The African Commission on Human and Peoples' Rights: Eleven years after' (2000) 6 Buffalo Human Rights Law Review 93; see also A Lloyd & R Murray 'Institutions with responsibility for human rights protection under the African Union' (2004) 48 Journal of African Law 165; also generally see GJ Naldi 'The role of the human and peoples' rights section of the African Court of Justice and Human Rights' in A Abass (ed) Protecting human security in Africa (2010) 286.
8 The PSC was established by the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (9 July 2002).
9 The overarching aim of the OAU Charter was the liberation and continued protection of African states from colonialism and neo-colonialism in addition to regional integration, while only one reference is made to human rights, where it is declared that one of the purposes of the OAU is to 'promote international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights'. The Charter's concern with self-determination and apartheid stems from political concerns of the time rather than from a concern for human rights. Compare the Preamble and the second and third articles of the constituting documents of the OAU and the AU. For a discussion of the pan-African context of the OAU Charter and the reasons for the unwillingness to emphasise human rights, see AM Adejo 'From OAU to AU: New wine in old bottle?' paper prepared for CODESRIA's 10th General Assembly on 'Africa in the New Millennium', Kampala, Uganda, 8-12 December 2002, http://www.codesria.org/Archives/ga10/Abstracts%20Ga%206-11/Regionalism_ Adejo.htm; see also E Baimu 'The African Union: Hope for better protection of human rights in Africa?' (2001) 1 African Human Rights Law Journal 299; for more information on the drafting process, see KD Magliveras & GJ Naldi 'The African Union - A new dawn for Africa?' (2002) 51 International and Comparative Law Quarterly 424.
10 See generally art 1 of the Statute of the Council of Europe and art A of the Treaty on European Union (Maastricht Treaty), both of which emphasise European integration.
11 See the Preamble and art 2 of the Constitutive Act of the AU. The Organization of American States (OAS) is different from the other continental intergovernmental organisations in that it is concerned neither with human rights nor with regional economic integration. According to art 1 of the Charter of the Organization of American States, the organisation is established 'to achieve an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence'.
12 Art 4(h) AU Constitutive Act. Art 4(j) also provides that member states may request the intervention of the African Union 'in order to restore peace and security'. See the Preamble; arts 3(e), (h) & (g), arts 4(c), (h), (l), (m), (o) & (p), art 23(2) and art 30 of the Constitutive Act of the AU emphasise the importance of human rights which, when compared to the OAS Charter, is considerable.
13 Art 23(2) AU Constitutive Act.
14 MS McDougal et al The interpretation of international agreements and world public order: Principles of content and procedure (1994) 38-39.
15 However, see Magliveras & Naldi (n 9 above) 415 418, arguing that the reading of the Constitutive Act indicates that there is an obvious inclination towards limiting sovereignty.
16 Such use was preferred especially because of the undemocratic nature of most African states as even in fully developed or mature democracies, the notion of representativeness (of the people versus the elite) is highly questionable. See S Chambers 'Deliberative democratic theory' (2003) 6 Annual Review of Political Science 307 308-309; C Pateman Participation and democratic theory (1979) 2-3; EL Rubin 'Getting past democracy' (2001) 149 University of Pennsylvania Law Review 711 733-744. The article, eg, would avoid the use of 'state' or 'state interest' when a ruler such as Gaddafi or Mugabe declares that something is in the interest of the state or the people to avoid the aura of legitimacy that is created by the statehood fiction.
17 Another achievement that would not have been realised without the constant efforts of African states is the ascendance of what have come to be known as 'third generation of human rights' to international recognition. See generally UO Umozurike The African Charter on Human and Peoples' Rights (1997) 51-62. Although taking note of this fact is important, the interest of this part of the study is to show the potential of African states' collective capacity to enforce already existing standards. Therefore, a detailed description of Africa's role in the development of third generation rights jurisprudence is unnecessary.
18 Resolutions adopted by the 1st ordinary session of the Assembly of Heads of State and Government held in Cairo, UAR, from 17 to 21 July 1964, 'Apartheid in South Africa' AHG/Res 6 (I) http://www.africa-union.org/root/au/Documents/Decisions/decisions.htm#19631969. (The Resolution outlines the intention of state parties to have apartheid outlawed and to make pressure to tighten the noose on South Africa politically and economically.) Apartheid is now accepted without much ado as an international crime by major international documents; see the Preamble and art 1 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted and opened for signature, ratification by GA Res 3068 (XXVIII)), 28 UN GAOR Supp (No 30) 75, UN Doc A/9030 (1974); see also art 7 of the Rome Statute of the International Criminal Court (1998/2002).
19 See JF Green The United Nations and human rights (1958) 779-793, reporting that India, followed by Pakistan, were the first states that protested the practices of the apartheid regimes in South Africa and Rhodesia, though their calls were for the better part ignored. The arguments of India and Pakistan would not have made sense if made in the name of human rights at that time, so they had to make their case by arguing that the apartheid regime was a threat to international peace and security.
20 What followed was the longest and most intensive human rights campaign ever by the General Assembly, which was not hampered even by the Cold War. The African Group was, through the General Assembly, successful in alienating South Africa from UNESCO, the ECA, the International Bank for Reconstruction and Development (IBRD), IMF, WHO and ILO; J Carey UN protection of civil and political rights (970) 27-33; see also Green (n 19 above) 779-783. Note that South Africa was either outright expelled or forced to resign from membership of these institutions. It also made numerous attempts to expel it from the UN Conference on Trade and Development (UNCTAD) and even from the membership of the General Assembly itself. The Assembly also established the Special Committee against Apartheid (1962), called for the boycott of South Africa from the Olympics; P Jackson & M Faupin 'The long road to Durban: The United Nations role in fighting racism and racial discrimination' UN Chronicle 2007; see also S Rosner & D Low 'The efficacy of Olympic bans and boycotts on effectuating international political and economic change' (2009) 11 Texas Review of Entertainment and Sports Law 27 60. The UN also adopted the Convention on the Suppression and Punishment of the Crime of Apartheid and labelled the constitutional order of South Africa a crime against humanity. See Apartheid Convention (n 18 above).
21 GA Res 1761 (XVII); Security Council Decision 181 (1963) Resolution of 7 August 1963 and 182 (1963) Resolution of 4 December 1963. The activities of the African Group were not limited to fighting apartheid, of course; the OAU's efforts also encompassed the ending of colonialism on the continent. See MA El-Khawas 'Southern Africa: A challenge to the OAU' (1977) 24 Africa Today 25. [ Links ]
22 From the positivistic point of view, the former does not have formal power to pass embargos, while the latter does not have the power to do the same where there was no threat to international peace and security. A non-binding call for the cessation of trade with the Rhodesian de facto government (de facto because its declaration was void by virtue of SC Res 217 (1965)) was made in 1965; SC Res 217(1965). A similar resolution was made in the same year authorising the United Kingdom to search ships to ascertain if they were transporting oil to Rhodesia. See SC Res 221 (1966), also on (1966) 60 American Journal of International Law. The Security Council did, however, impose its first binding decision in the form of a trade embargo under art 41 of the UN Charter against Rhodesia in 1966 (SC Res 232 (1966)); see Fl Kirgis 'The Security Council's first fifty years, the United Nations at fifty' (1995) 89 American Journal of International Law 506 512, reflecting on how the Security Council's first decision was later taken as the norm in the interpretation of the Charter. The second-ever such binding decision was also taken after a decade, but under similar circumstances against South Africa (Security Council Resolution 418 (1977)).
23 Carey hypothesises that the threat to peace and security is from other African states that might militarily intervene in the apartheid regimes; Carey (n 20 above) 25; P Malanczuk (ed) AkehursVs modern introduction to international law (1997) 394. (Since there was no apparent threat that the racist regimes did not pose a threat to the peace, he hypothesises that the threat might come from the nature of the regimes that invite sub-regional revolution.) Others have hypothesised that, since the apartheid system itself is described as a threat to the peace in the relevant resolutions, the Security Council's actions should be seen as an attack on the regimes rather than a formalistic finding of a threat to the peace. See V Gowlland-Debbas 'Security Council enforcement action and issues of state responsibility' (1994) 43 International and Comparative Law Quarterly 64-65; CG Fenwick 'When is there a threat to the peace? Rhodesia' (1967) 61 American Journal of International Law 753.
24 See H Tolley Jr 'The concealed crack in the citadel: The United Nations Commission on Human Rights' response to confidential communications' (1984) 6 Human Rights Quarterly 426-429, explaining how this 'procedural breakthrough' was a result of the Third World's independence and describes the evolution of the 1503 and 1235 procedures.
25 The 1503 procedure was created as a result of objections by states who claimed that the non-confidential 1235 procedure could not use confidential communications to the UN as an input. The 1503 procedure was passed to allow confidential communications to pass to the 1235 procedure. See Tolley (n 24 above) 450. The accidental effect was the creation of a two-tiered process in which the 1503 superseded the 1235 process in its frequent use as it was preferred by states for its confidentiality. See HJ Steiner & P Alston International human rights in context: Law, politics and morals (2000) 612.
26 J Donnelly 'Human rights at the United Nations 1955-85: The question of bias' (1988) 32 International Studies Quarterly 297, describing how, except for South Africa, Chile and Israel, who obtained universal and protracted condemnation, no Third World or African country received any negative attention unless it was a Western state or an ally thereof; also W Weinstein 'Africa's approach to human rights at the United Nations' (1976) 6 A journal of Opinion 14 15-16. Immediately following the success of establishing the Human Rights Commission procedures, the procedure turned its attention to the violations of African states, thus leading them to rally to limit its ambit to the apartheid regime in South Africa.
27 CE Welch Jr 'The African Commission on Human Rights and Peoples' Rights: A five-year report and assessment' (1992) 14 Human Rights Quarterly 43, explaining that this was caused by the fact that its newly-independent state parties had independence in their focus and not human rights protection; UO Umozurike 'The domestic jurisdiction clause in the OAU Charter' (1979) 78 African Affairs 197 202203, explaining the importance of the domestic jurisdiction clause, but also noting that apartheid was agreed to be an exception to this rule; JD Boukongou 'The appeal of the African system for protecting human rights' (2006) 6 African Human Rights Law journal 268 293, finding the evidence for this not only in the failure of African leaders to establish a regional court, but in their espousal of a notion of non-litigious African (ie culturally relative) system of human rights.
28 See arts 2(1)(c) & 3(2) & (3) of the OAU Charter.
29 See IG Shivji The concept of human rights in Africa (1989) 104, reporting that the original draft of the Banjul Charter had envisaged a restriction on the appointment of government employees or diplomats of states, though that proposal was dropped. He also reports the subsequent appointment of partisan politicians to the post.
30 NJ Udombana 'Can the leopard change its spots? The African Union treaty and human rights' (2002) 17 American University Law Review 1177, arguing that only 'the presence of a threat of foreign intervention' could prompt the OAU to act.
31 As above. See PC Aka 'The military, globalisation, and human rights in Africa' (2002) 18 New York Law School Journal of Human Rights 361 386-389, [ Links ] branding the political style prevalent on the continent as 'politics by the gun', describing the Nigerian civil war, which took three million lives (mostly Igbos) as one of 'genocidal proportions'; T O'Toole & JE Baker The historical dictionary of Guinea (2005) ixiii, stating that Telli was executed by the orders of Amadou Sekou Toure.
32 Quoted by CE Welch Jr 'The OAU and human rights: Towards a new definition' (1981) 19 Modern African Studies 401 404.
33 Weinstein (n 26 above) 17-18, describing the Rwandan, Burundian and Ghanaian expulsions and violations of human rights.
34 Welch (n 27 above) also describes the lavish coronation party and Amnesty International's report of how in one incident in which 500 students were killed in a crackdown against the students' demonstration against a requirement that they wear uniforms that they could not afford - allegedly the uniforms were to be distributed and sold by a relative of Bokassa's.
35 B Baker 'Twilight of impunity for Africa's presidential criminals' (2004) 25 Third World Quarterly 1587 1496, describing the Mobutu regime as the longest surviving and most corrupt regime, reporting that Mobutu had collected for himself a fee of billion for his disservices.
36 GA Aneme 'Apology and trials: The case of the Red Terror trials in Ethiopia' (2006) 6 African Human Rights Law Journal 66-67.
37 C Legum Behind the clown's mask (1997) 250 252 253, stating that many states could have objected to his nomination (which is distributed on a rotation basis). African leaders were forced to accept Amin's chairmanship and the holding of the 1975 ordinary session in Kampala because he had strong supporters and so as to keep cohesion within the organisation; Baker (n 35 above) 1493, describing the atrocities of Amin; Amnesty International estimates that the number of his killings
38 Eg, art 6 of the African Charter states that '[e]very individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained' (my emphasis). See R Gittleman 'The Banjul Charter on Human and Peoples' Rights: A legal analysis' in CE Welch & RI Meltzer (eds) Human rights and development in Africa (1984) 286. For a detailed discussion of the issue of limitations and derogations at the international and European level, see R Pati 'Rights and their limits: The constitution for Europe in international and comparative legal perspective' (2005) 23 Berkeley journal of International Law 223.
39 See art 45 of the African Charter. Rather than a duty to 'respect and ensure' and to provide an 'effective remedy', state parties are only required to 'allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter' (my emphasis). Compare art 2 of ICCPR to art 26 of the African Charter.
40 Art 62 African Charter, compared with art 40 of ICCPR, which requires state parties to submit reports on a wider category of 'measures'; see TS Bulto 'Beyond the promises: Resuscitating the state reporting procedure under the African Charter on Human and Peoples' Rights' (2006) 12 Buffalo Human Rights Law Review 57 60-61, arguing that it is was not logical to focus on legislative measures at a time when Africa was seeing its most serious violations, therefore suggesting that reporting should have focused on situations on the ground.
41 Arts 55-58 African Charter. Thus, the individual communication procedure was intended to be more like the UN Human Rights Commission 1503 procedure.
42 BT Nyanduga 'Conference paper: Perspectives on the African Commission on Human and Peoples' Rights on the occasion of the 20th anniversary of the entry into force of the African Charter on Human and Peoples' Rights' (2006) 6 African Human Rights Law journal 255 257-258, reasoning that the failure of the Commission to probe into the human rights abuses in these circumstances is mainly due to its financial disability. For a detailed look at the OAU's role in Rwanda, see A Tekle 'The OAU: Conflict prevention, management and resolution' in H Adelman & A Suhrke (eds) The path of a genocide: The Rwanda crisis from Uganda to Zaire (2000) 118-124.
43 PM Munya 'The Organisation of African Unity and its role in regional conflict resolution and dispute settlement: A critical evaluation' (1999) 19 Boston College Third World Law journal 537 578, criticising the OAU's distinction between internal and international conflicts in Africa.
44 Udombana (n 30 above) 1224.
45 R Murray 'The Report of the OAU's International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events' (2001) 45 journal of African Law 123 130.
46 According to the Commission, this practice is justified as 'a single violation still violates the dignity of the victim and is an affront to international human rights norms'. The African Commission Human and Peoples' Rights, Information Sheet 2, Guidelines of the Submission of Communications, Organisation of African Unity 6; also see CA Odinkalu 'The individual complaints procedures of the African Commission on Human and Peoples' Rights: A preliminary assessment' (1998) 8 Transnational Law and Contemporary Problems 359 369-378, discussing the legal basis of the individual communications procedure under the African Charter; R Murray 'Decisions by the African Commission on individual communications under the African Charter on Human and Peoples' Rights' (1997) 46 International and Comparative Law Quarterly 412 413, arguing that the individual complaints mechanism of the Commission does not have positive legal support within the treaty system; CA Odinkalu & C Christensen 'The African Commission on Human and Peoples' Rights: The development of its non-state communication procedures (1998) 20 Human Rights Quarterly 235 240-244, arguing that individual communication has enough positive conventional basis.
47 VO Nmehielle 'Development of the African human rights system in the last decade' (2004) 11 Human Rights Brief 6 7; JH Knox 'Horizontal human rights law' (2008) 102 American Journal of International Law 1 17; GJ Naldi 'The African Union and the regional human rights system' in M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights: The system in practice, 1986-2000 (2002) 27-28.
48 J Harrington 'Special Rapporteurs of the African Commission on Human and Peoples' Rights' (2001) 1 African Human Rights Law Journal 247 248-249; also see F Ouguergouz The African Charter on Human and Peoples' Rights: A comprehensive agenda for human dignity and sustainable democracy (2003) 626-627, discussing its jurisprudence of presuming that the evidence provided by an applicant will be presumed true if the state does not respond to an application; R Murray, 'Evidence and fact-finding by the African Commission' in Evans & Murray (n 47 above) 112115; Odinkalu (n 46 above) 377; R Murray 'Recent developments in the African human rights system 2007' (2008) 8 Human Rights Law Review 356 366-370, discussing the most recent jurisprudential contribution of the Commission on the exhaustion of local remedies.
49 See CE Welch 'The Organisation of African Unity and the promotion of human rights' (1991) 29 journal of Modern African Studies 535 543-45; also see N Loum 'The African system of human rights: Institutional mechanisms and their interconnections' and SS Thompson 'The African human rights system: Comparison, context, and opportunities for future' in M Wodzicki (ed) The fight for human rights in Africa: Perspectives on the African Commission on Human and Peoples' Rights (2008) 24-26 38-39.
50 F Viljoen & L Louw 'State compliance with the recommendations of the African Commission on Human and Peoples' Rights, 1994-2004' (2007) 101 American journal of International Law 1 5.
51 As above. See also F Viljoen 'Recent developments in the African regional human rights system' (2004) 4 African Human Rights Law journal 344 345, explaining that the lack of adherence to the Commission's decisions is due to the fact that the OAU annual session does not put to public discussion (shame) state parties that do not comply with Commission decisions and is therefore easy to get away with violations; also Bulto (n 40 above) 69, concluding that the failure and delay in submitting periodic reports has been the 'chronic problem' plaguing the Commission's work; also see Odinkalu (n 46 above) 398-400, going through the reports of the Commission, pleading for resources, qualified staff, office equipment and money to at least pay for telephone bills and reports one ex-commissioner's complaint regarding 'a lack of money, lack of funds, lack of ability to act; see K Quashigah 'The African Charter on Human and Peoples' Rights: Towards a more effective reporting mechanism' (2002) 2 African Human Rights Law journal 261 277, arguing that the whole state reporting mechanism is not taken seriously by states and the Commission itself pointing, among other things, to the fact that state representatives simply do not show up for reports and when they do, they do not stay for more than an hour and a half; also see GM Wachira & A Ayinla 'Twenty years of elusive enforcement of the recommendations of the African Commission on Human and Peoples' Rights: A possible remedy' (2006) 6 African Human Rights Law journal 465 466-467, observing that 'the attitude of state parties, since the Commission's inception ... by and large has been generally to ignore [its] recommendations, with no attendant consequences'; C Beyani 'Recent developments in the African human rights system 2004-2006' (2007) 7 Human Rights Law Review 582 587-588, noting that the Commission has unofficially pointed out that member states are not always complying with the eligibility criteria and that there are serious issues with budgeting.
52 As at May 2010 (note that the African Charter came into force in 1986), 13 states had not yet submitted any report, while 16 had only made their initial reports. Rwanda stands out for submitting the most number of reports, totalling five reports, whereas, according to art 62 of the African Charter, it ought to have submitted 12 reports by 2010; African Commission on Human and Peoples' Rights, Status on Submissions of State Initial/Periodic Reports to the African Commission (updated: March 2008) http://www.achpr.org/english/_info/statereport_considered_en.html (accessed 4 October 2008).
53 C Heyns 'The African regional human rights system: The African Charter' (2004) 108 Penn State Law Review 696; Welch (n 49 above) 555.
54 Although the African Commission was for a long time prevented from considering state reports because states did not appear before the Commission for a consideration of their own situation, it has since 2006 (at its 39th ordinary session) been considering state reports in the absence of the states concerned; L Stone 'The 38th ordinary session of the African Commission on Human and Peoples' Rights, November 2005, Banjul, The Gambia' (2006) 6 African Human Rights Law Journal 225 227.
55 F Viljoen 'State reporting under the African Charter on Human and Peoples' Rights: A boost from the south' (2000) 44 Journal of African Law 111.
56 See generally the 7th paragraph of the Preamble and arts 3(g), 4(c), (h), (j) & (l) and 9(g) of the AU Constitutive Act.
57 See arts 4(h), 23(2) & 30 of the AU Constitutive Act.
58 See T Maluwa 'From the Organisation of African Unity to the African Union: Rethinking the framework for inter-state co-operation in Africa in the era of globalisation' (2007) 5 University of Botswana Law Journal 5 36-37.
59 CS Martorana 'The new African Union: Will it promote enforcement of the decisions of the African Court on Human and Peoples' Rights?' (2008) 40 George Washington International Law Review 583 595-596, arguing that if member states of the African Union are to allow the Commission to do its job and co-operate with it in enforcing human rights on other states, other states would do the same, and this is exactly why they do not wish to be co-operative in condemning violations; AE Anthony 'Beyond the paper tiger: The challenge of a human rights court in Africa' (1997) 32 Texas International Law Journal 511 517, questioning whether the states who control who becomes a member of the Commission would have independent experts appointed.
60 'I'm the king of kings: Gaddafi storms out of Arab summit and labels Saudi king "a British product"' Mail on Line News 31 March 2009, http://www.dailymail.co.uk/news/worldnews/article-1165858/Im-king-kings-Gaddafi-storms-Arab-summit-labels-Saudi-king-British-product.html#ixzz0c2Y4tBK2 (accessed 31 January 2012); 'Gaddafi: Africa's "king of kings"' BBC News http://news.bbc.co.uk/2/hi/africa/7588033.stm (accessed 31 January 2012), reporting that his ultimate intention in gathering African traditional leaders and conferring this title to himself is to push African political leaders by creating a grass-roots movements for African unification.
61 'Special Motion of Thanks to the Leader of the Great Socialist Libyan Jamahiriya Brother Muammar Al Ghaddafi' adopted by the 5th extraordinary session of the Assembly of Heads of State and Government, Decisions adopted by the 5th extraordinary session of the Assembly of Heads of State and Government of the OAU/AEC, 1-2 March 2001, Sirte http://www.au2002.gov.za/docs/key_oau/sirterep.htm (accessed 31 January 2012); see H Richardson 'The danger of oligarchy within the pan-Africanist authority of the African Union' (2003) 13 Transnational Law and Contemporary Problems 266-269, speculating that Ghaddafi's Libya, alongside South Africa and Nigeria, may be emerging as a regional hegemon due to its capacity to finance an under-funded AU; a similar view is expressed by B Müller 'The African Union as security actor: African solutions to African problems?' Crisis States Working Papers Series 2 (Working Paper 57 August 2009).
62 See arts 5, 6(2) & 34(6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, 9 June 1998, OAU Doc OAU/LEG/EXP/AFCHPR/PROT (III); and also read cumulatively art 30 of the Statute of the African Court of Justice and Human Rights and art 8 of the Protocol on the Statute on the African Court of Justice and Human Rights.
63 As the law currently stands, the chances that the Court will deal with enough cases to make itself relevant depend on whether the African Commission will refer cases to it.
64 D Juma 'Access to the African Court on Human and Peoples' Rights: A case of the poacher turned gamekeeper' (2007) 4 Essex Human Rights Review 1 4, arguing that the assumption behind such a construction, that states and state institutions and inter-governmental organisations would submit cases, is a false one.
65 Only 26 states had ratified it by the end of March 2011, List of Countries which have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (11/03/2011) http://www.au.int/en/sites/default/files/992achpr.pdf (accessed 31 January 2012).
66 As above.
67 List of Countries which have Signed, Ratified/Acceded to the Protocol on the Statute of the African Court of Justice and Human Rights (08/11/2011) http://www.au.int/en/treaties (accessed 31 January 2012).
68 T Buergenthal 'Remembering the early years of the Inter-American Court of Human Rights' Center for Human Rights and Global Justice Working Paper, NYU School of Law, New York (1, 2005) 10 http://www.chrgj.org/publications/docs/wp/s05buergenthal.pdf (accessed 31 January 2012), explaining that the Court opened its doors in 1979, received its first case in 1986 and its second in 1989.
69 As above.
70 Para 10 of Declaration of Judge Maximo Cisneros, Compulsory Membership in an Association Prescribed by Law, IACHR Ser A, OC-5/85 (13 November 1985).
71 The institutions that deal with human rights have been discussed in sec 3.1.
72 See below n 139 and accompanying text.
73 F Viljoen 'A Human Rights Court for Africa, and Africans' (2004) 30 Brooklyn journal of International Law 1 63, having reported in previous publications that the Commission is deficient in resources, staff, paper, printers, buildings and infrastructure, argues that '[i]nstitutional mechanisms and procedures are only words on paper'.
74 From ,2 million in 2007, it raised the budget to million in 2008; see J Biegon & M Killander 'Human rights developments in the African Union during 2008' (2009) 9 African Human Rights Law journal 295 297; also see J Biegon & M Killander 'Human rights developments in the African Union during 2009' (2010) 10 African Human Rights Law journal 212 214, concluding that the African Commission was able to hold two extraordinary sessions because of the increased budget.
75 Although the budget was increased in 2008 to 6 million, it came down to 3,5 million in 2009, Executive Council 15th ordinary session 24-30 June 2009, Sirte, Libya, EX CL/529(XV) paras 125-130 (27 May 2009); 28th Activity Report of the African Commission on Human and Peoples' Rights (ACHPR) EX CL/600(XVII) paras 57 (iv) & 192 (2010), reporting that the Commission ought to find alternative financial resources and that the staffing situation 'has reached critical levels'.
76 Decision on the Meeting of African State Parties to the Rome Statute of the International Criminal Court (ICC), Doc Assembly/AU/13(XIII) (July 2010); Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, Doc Assembly/AU/3 (XII) Assembly/AU/Dec.213 (XII) adopted by the 14th ordinary session of the Assembly in Addis Ababa, Ethiopia on 2 February 2010; also see Coalition for an Effective African Court on Human and Peoples' Rights (CEAC) et al, Implications of the African Court on Human and Peoples' Rights Being Empowered to Try International Crimes such as Genocide, Crimes Against Humanity, and War Crimes: An Opinion 6-8, http://www.soros.org/initiatives/justice/news/africa_20091217/africa _20091217.pdf (accessed 31 January 2012).
77 S Gutto 'The reform and renewal of the African regional human and peoples' rights system' (2001) 1 African Human Rights Law Journal 178-179, describing the duplication of mechanisms as 'unfortunate and disturbing', explicating how the mechanisms related to the African children's and refugee conventions do not add any value to the whole African system other than its running cost; Heyns (n 53 above) 679 702, critiqueing how the NEPAD African Peer Review Mechanism was launched before the courts had been firmly established). A good picture of the situation in which the Commission is striving can be seen in its 2007/2008 report. In this report, the Commission disclosed that it did not have the resources to lease an office while it was being forced to relocate its offices. Though it has been able to have an office at all, mainly due to the generosity of the Gambian government, its financial constrains prevented it from conducting in loco visits and from conducting seminars, and it was not able to hire the necessary staff and had to rely on non-budgetary resources that covered 43% of its expenditure. See paras 45-48, 65 & 112 and annex II of Executive Council 13th ordinary session 24-28 June 2008 Activity Report of the African Commission on Human and Peoples' Rights, Submitted in Conformity with Article 54 of the African Charter on Human and Peoples' Rights, http://www.achpr.org/english/_info/index_activity_en.html (accessed 31 January 2012).
78 See E Svensson 'The African mission in Burundi: Lessons learned from the African Union's first peace operations' (2008) http://www.foi.se/upload/projects/Africa/FOI2561_AMIB.pdf (accessed 31 January 2012); JD Rechner 'From the OAU to the AU: A normative shift with implications for peacekeeping and conflict management, or just a name change?' (2006) 39 Vanderbilt Journal of Transnational Law 568.
79 See 'Somalia Islamists al-Shabab "driven out of Mogadishu"' BBC News Africa http://www.bbc.co.uk/news/world-africa-15246093 (accessed 31 January 2012); also generally see T Murithi 'The African Union's evolving role in peace operations: The African Union mission in Burundi, the African Union mission in Sudan and the African Union mission in Somalia' (2008) 17 African Security Review 70 81.
80 See Lomé Declaration of July 2000 on the framework for an OAU response to unconstitutional changes of government (AHG/Decl 5 (XXXVI).
81 JI Levitt 'Pro-democratic intervention in Africa' (2006) 24 Wisconsin International Law Journal 785 813; 'Sanctions put on Mauritania junta' BBC News 6 February 2009, http://news.bbc.co.uk/2/hi/7874066.stm (accesse3d 31 January 2012); also AA Qadar 'The OAU's role in the consolidation of democracy in Africa' (2000) 4 DePaul International Law Journal 37 63-65; Peace and Security Council 181st Meeting, 20 March 2009 PSC/PR/COMM.(CLXXXI); Peace and Security Council 216th Meeting, 19 February 2010 PSC/PR/CO M M.2(CCXVI); see also 'African Union bars Guinea on coup' BBC News http://news.bbc.co.uk/2/hi/7802803.stm (accessed 31 January 2012). The AU might have found a precedent for this sort of action in the interventions and involvements of sub-regional organisations such as ECOWAS (in Liberia, Sierra Leone, Guinea-Bissau, and Cóte d'Ivoire) and SADC (Lesotho). Peace and Security Council 315th Meeting, 23 March 2012 PSC/PR/COMM (CCCXV).
82 BBC News Africa, Comoros profile, http://www.bbc.co.uk/news/world-africa-13231758; AFP, 'African Union slaps sanctions on rebel Comoran Isle leaders', afp.google.com/article/ALeqM5guu-gW6VQp2KyXIZSyPJC5ibuUFg (accessed 31 January 2012).
83 As above; E Svensson 'The African Union's operations in the Comoros: MAES and Operation Democracy, FOI Swedish Defence Research Agency' http://www.foi.se/upload/projects/Africa/foir2659.pdf (accessed 31 January 2012).
84 See, eg, Peace and Security Council 221st Meeting, 17 March 2010 PSC/PR/ COMM.(CCXXI); Peace and Security Council 220th Meeting, 11 March 2010 PSC/ PR/BR.1(CCXX); Peace and Security Council 216th Meeting, 19 February 2010 PSC/ PR/COMM.2(CCXVI); P Heinlein 'African Union suspends Ivory Coast, reinstates Guinea' Voice of America 9 December 2010.
85 Heinlein (n 84 above); 'African Union reinstates Ivory Coast' CNN World 22 April 2011 articles.cnn.com/2011-04-22/world/ivory.coast.african.union_1_peace-and-security-council-african-union-president-laurent-gbagbo?_s=PM:WORLD; AU Peace and Security Council, 30th Meeting, 27 May 2005, Addis Ababa, PSC/PR/Comm. (XXX),
86 A Banjo 'Constitutional and succession crisis in West Africa: The case of Togo' (2008) 2 African journal of Legal Studies 147 153-156, describing post-election crackdown on media and civil society and other related human rights abuses that were a backdrop to Faure Gnassingbe's victory; E Blunt 'African Union lifts Togo embargo' BBC News 27 May 2005, stating that African leaders accepted Mr Gnassingbe (the son of the former dictator) into their club despite the fact that the elections were controversial and the European Union did not lift its embargos for the same reason, http://news.bbc.co.uk/2/hi/7874066.stm (accessed 31 January 2012); PS Handy 'The dynastic succession in Togo: Continental and regional implications' (2005) 14 African Security Review 47 51.
87 EY Omorogbe 'A club of incumbents? The African Union and coups d'état' (2011) 44 Vanderbilt journal of Transnational Law 123 141.
88 Omorogbe (n 87 above) 145; also see 'Mauritania and the African Union: All is rather easily forgiven' The Economist 23 July 2009; 'Opposition claims "massive fraud" in Mauritania poll' AFP 20 July 2009.
89 Omorogbe (n 87 above) 149 151 153.
90 Most independent observers are in agreement that the elections were won by Mugabe by the use of systematic violence against opposition supporters. Although the opposition leader, Morgan Tsvangirai, won a majority of votes, he withdrew from the second round citing violence against his electorate. See Amnesty International 'Zimbabwe: Amnesty International Report 2009', http://thereport.amnesty.org/en/regions/africa/zimbabwe (accessed 31 January 2012); Human Rights Watch 'Zimbabwe events of 2008', http://www.hrw.org/en/node/79221 (accessed 31 January 2012).
91 R Bush & M Szeftel 'Sovereignty, democracy and Zimbabwe's tragedy' (2002) 29 Review of African Political Economy 5 11, arguing that self-interest must have been the interest that the African leaders were defending the Mugabe regime and supporting the argument with pertinent examples; PD Williams 'From nonintervention to non-indifference: The origins and development of the African Union's security culture' (2007) 106 African Affairs 423 274-275.
92 Stone (n 54 above) 225 235, describing the African Commission's findings of violations in Zimbabwe, Eritrea, Sudan, DRC and Uganda; Zimbabwe Human Rights NGO Forum vZimbabwe (2006) AHRLR 128 (ACHPR 2006); Final Communique of the 41st session of the African Commission on Human and Peoples' Rights, 30 May 2007; also Resolution on freedom of expression and the upcoming elections in Zimbabwe, ACHPR/Res 128 (XXXXII) 07 (28 November 2007); 'Kenya urges AU to suspend Mugabe' BBC 30 June 2008, http://news.bbc.co.uk/2/hi/africa/7481857.stm (accessed 31 January 2012).
93 Generally, see Preliminary Statement of the African Union Observer Mission to the Sudan Elections 11-15 April 2010, issued at the AU Observer Mission Office Grand Holiday Villa Hotel, Khartoum, Sudan, 18 April 2010; Preliminary Statement of the African Union Observer Mission to the Presidential Elections in The Republic of The Gambia, 24 November, 2011, issued at the AU Observer Mission Office Senegambia Beach Hotel, Banjul, The Gambia, 25 November 2011; Joint Statement of International observer Mission of the Djibouti Presidential Elections held on 8 April 2011, Djibouti, 9 April 2011; Preliminary Statement of The African Union Observer Mission to the Presidential and Parliamentary Elections in Uganda, 18 February 2011, COP17/CMP7, 23 February 2011; 'Chad vote conformed to international standards: AU observers' Radio Netherlands Worldwide 27 April 2011; Declaration of the Election Observation Mission of the African Union, Republic of Cameroon, 9 October 2011; Preliminary Statement of the African Union Observer Mission on the Ethiopia Legislative Elections of 23 May 2010, issued at the AU Observer Mission Secretariat, Hilton Hotel, Addis Ababa, Ethiopia, 26 May 2010; Beyani (n 51 above) 591-592.
94 See 'DRC election hailed a success by African observers' BBC News 30 November 2011; A Nossiter 'Congo President Kabila denies reports of election fraud' New York Times 12 December 2011.
95 In the past, the OAU had ignored violations of human rights and humanitarian law in the Sudan in keeping with its 'domestic affairs' doctrine. This is reflected in how the OAU sincerely dealt with the deteriorating relations of the Sudanese government with its neighbours (Ethiopia, Eritrea and Uganda) while ignoring the unfolding gross violations resulting from the war in the south; D Boubean 'A case study of Sudan and the Organisation of African Unity' (1998) 41 Howard Law Journal 413 436-37.
96 African Union Peace and Security Council Communique of the 17th Meeting of the Peace and Security Council, PSC/AHG/Comm (X) 25 May 2004, Addis Ababa, Ethiopia, authorising the first observer mission (which eventually became the African Union Mission in Sudan) to observe the implementation of the ceasefire, http://www.africa-union.org/News_Events/Communiqu%C3%A9s/25%20may Communiqu%C3%A9%20_10th_.pdf (accessed 31 January 2012); also see JE Tangho & J Hermina 'The international community responds to Darfur: ICC prosecution renews hope for international justice' (2008-2009) 6 Loyola University Chicago Law Review 367 381 -382, describing the role of the AU in negotiations and peace keeping; also see WWG O'Neill & V Cassis 'Protecting two million internally displaced: The successes and shortcomings of the African Union in Darfur' The Brookings Institution - University of Bern Project on Internal Displacement 5-8 (November 2005) (for a general description of the AU's role in the Darfur situation). A detailed description of the AU's mission in Darfur can also be found in Human Rights Watch 'Imperatives for immediate change: The African Union Mission in Sudan' (Human Rights Watch 18 1 (A)); also see SM Makinda & FW Okumu The African Union: Challenges of globalisation, security, and governance (2008) 84-87.
97 African Union, Press Release 112/2004, the Chairperson of the Assembly expressing serious concern over parties breaking the N'Djamena ceasefire, laying blame on both parties by describing specifically when and at what time each party was responsible for such, http://www.africa-union.org/News_Events/Press_Releases/112%2004%20Darfur%20 Ceasefire%20Agreement%20violation.pdf (accessed 31 January 2012); African Union, Press Release 116/2004, the Chairperson of the Assembly condemning specifically the government of Sudan, http://www.africa-union.org/News_Events/Press_Releases/116%2004%20Darfur%2018%20dec% 202004.pdf (accessed 31 January 2012).
98 The AU has been emphasising this point. See Assembly of the African Union -Declaration on the Activities of the Peace and Security Council of the African Union and the State of Peace and Security in Africa (Assembly/AU/Decl 3 (VI)) http://www.africa-union.org/root/au/Documents/Decisions/decisions.htm(accessed 31 January 2012).
99 Rechner (n 78 above) 572-73, arguing that the OAU would not have been involved had the Darfur conflict taken place a decade earlier under the OAU's guard; 'The African Union in Darfur NewsHour 5 October 2005 (interview with employees of Refugees International describing the situation of internally-displaced persons) http://www.pbs.org/newshour/bb/africa/july-dec05/darfur_10-5.html#(accessed 31 January 2012).
100 NJ Udombana 'An escape from reason: Genocide and the International Commission of Inquiry on Darfur' (2006) 40 International Lawyer41 64.
101 Para 2 of African Union, Assembly of the African Union 3rd ordinary session 6-8 July 2004, Addis Ababa, Ethiopia (Assembly/AU/Dec 54 (III)) http://www.africa-union.org/AU%20summit%202004/Assm/Assembly%20Decisions%20-Final.pdf (accessed 31 January 2012); see also Udombana (n 100 above) 64, arguing that this shows that the member states of the AU chose to stand on Al Bashir's side on his confrontation with the US.
102 Udombana (n 100 above) 65; see also JE Wokoro 'Towards a model for African humanitarian intervention' (2008) 6 Regent journal of International Law 1 21, arguing that the chances that the Peace and Security Council of the AU or the AU in general will be a champion of human rights are slim.
103 African Union, Decisions and Declarations: Assembly 1963-2008, http://www.africa-union.org/root/au/Documents/Decisions/decisions.htm (accessed 31 January 2012); African Union, Decisions and Declarations: Executive Council 1963-2006, http://www.africa-union.org/root/au/Documents/Decisions/decisions.htm (accessed 31 January 2012); Executive Council, 14th ordinary session 26-30 January 2009, Addis Ababa, Ethiopia, Decision on the 1st session of the African Union Conference of Ministers in Charge of Social Development, Doc EX.CL/477(XIV) para 7, http://www.africa-union.org/root/au/Documents/Decisions/ExeCoundecisions.htm(accessed 31 January 2012).
104 Reporting that Jean Ping, Chairperson of the AU Commission, told a journalist: 'We say that peace and justice should not collide, that the need for justice should not override the need for peace.' 'Arrest warrant draws Sudan scorn' BBC News http://news.bbc.co.uk/2/hi/africa/7924982.stm (accessed 31 January 2012); also see M Simons 'Court issues arrest warrant for Sudan's leader' New York Times http://www.nytimes.com/2009/03/05/world/africa/05court.html (accessed 31 January 2012).
105 'African Union in rift with court' BBC News http://news.bbc.co.uk/2/hi/8133925.stm (accessed 31 January 2012); also see Human Rights Watch 'African civil society urges African states parties to the Rome Stature to reaffirm their commitment to the ICC' 30 July 2009, presenting the views and statements of 164 non-governmental organisations.
106 Decision on the Implementation of the Assembly Decisions on the International Criminal Court Doc EX.CL/670(XIX); also see Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/Au/Dec.270(Xiv) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court Doc Assembly/Au/10(XV).
107 Report of the African Union High Level Panel on Darfur (AUPD), Peace and Security Council, 207th Meeting at the Level of the Heads of State and Government 29 October 2009 Abuja, Nigeria, PSC/AHG/2(CCVII) 64-67, http://www.africa-union.org/root/ar/index/AUPD%20Report%20on%20Darfur %20%20_Eng%20_ %20Final.pdf (accessed 31 January 2012); also see 'Mbeki to brief the UNSC on the AU roadmap for Darfur' Sudan Tribune 21 December 2009, http://www.sudantribune.co/spip.php?article33535 (accessed 31 January 2012).
108 '"Our goal was to find a way out for Sudan president" says Mbeki panel member' Sudan Tribune 2 November 2009, http://www.sudantribune.com/spip.php?article32981 (accessed 31 January 2012); Human Rights Watch 'UN: back AU call for Darfur prosecutions' 18 December 2009, arguing that the hybrid tribunal should be pursued but without affecting the ICC's arrest warrants on Al-Bashir and his co-accused collogues, http://www.hrw.org/en/news/2009/12/18/un-back-au-call-darfur-prosecutions (accessed 31 January 2012).
109 Press Release on the decision to suspend 13 international humanitarian organisations and the closure of three non-governmental organisations in Sudan (Commissioner, Special Rapporteur on the Rights of Human Rights Defenders in Africa) http://www.achpr.org/english/Press%20Release/press% 20release_HRD_Sudan.htm (accessed 31 January 2012); Press Release of the Special Rapporteur on Refugees, Asylum Seekers, Internally-Displaced Persons and Migrants in Africa, http://www.achpr.org/english/_info/news_en.html (accessed 31 January 2012).
110 Executive Council 8th ordinary session 16-21 January 2006, Khartoum, Sudan; Decision on the 19th Activity Report of the African Commission on Human and Peoples' Rights, Doc EX.CL/236 (VIII) (authorising the publication of the 19th Activity Report of the African Commission on Human and Peoples' Rights and its annexes, except for those containing the Resolutions on Eritrea, Ethiopia, Sudan, Uganda and Zimbabwe) http://www.africa-union.org/root/au/Documents/Decisions/ExeCoundecisions.htm (accessed 31 January 2012).
111 22nd Activity Report of the African Commission on Human and Peoples' Rights EX.CL/364(XI) (2007); see paras 108-109, 123 & 137.
112 While the President of Tunisia stepped down on 14 January and the AUPSC made the declaration the following day, the President of Egypt stepped down on 11 February and the AUPSC made the statement on 16 February; Peace and Security Council 257th Meeting, Addis Ababa, Ethiopia, 15 January 2011 PSC/PR/COMM.2 (CCLVII); Peace and Security Council 260th Meeting, PSC/PR/COMM.(CCLX) 16 February 2011. It was reported in the media that one of the commissioners of the AU Peace and Security Council was quoted to have stated in a summit: 'We believe that there are changes that are necessary in order to respond to the wishes of the people, economic reforms, social measures, and probably also issues related to the government that need to be addressed.' Technically, however, this cannot be considered as an action of any AU organ.'
113 Peace and Security Council 261st Meeting, PSC/PR/COMM (CCLXI) 23 February 2011; see para 2.
114 Peace and Security Council 261st Meeting (n 113 above) para 5.
115 In the matter of African Commission on Human and Peoples' Rights v Great Socialist People's Libyan Arab Jamahiriya, Application 004/2011.
116 O Tungwarara 'The Arab Spring and the AU Response, Open Society Institute -Africa Governance Monitoring and Advocacy Project' 19 September 2011.
117 See 'AU's opposition to military intervention in Libya ignored by UNSC' Sudan Tribune 18 March 2011; 'Africa: The African Union and Libya - On the horns of a dilemma' 2 November 2011, allafrica.com/stories/201111030819.html (accessed 31 January 2010); Department of Public Information 'Security Council approves "no-fly zone" over Libya, authorising "all necessary measures" to protect civilians, by vote of 10 in favour with 5 abstentions' Security Council 6498th Meeting (Night) (SC/10200).
118 As above.
119 Peace and Security Council 265th Meeting, PSC/PR/COMM (CCLXI) 23 February 2011; Decision on the Report of the Peace And Security Council on its Activities and the State of Peace and Security in Africa Doc.Assembly/AU/4(XVII); Assembly of the Union 17th ordinary session, Decision on the Situation in Libya Assembly/AU/ Dec.385(XVII); W Davison 'African Union withholds support from Libyan rebels, calls for peace talks' Bloomberg 26 August 2011; 'Libya: Benghazi rebels reject African Union truce plan' BBC News Africa 11 April 2011.
120 Assembly of the African Union, Decision on the Implementation of the Assembly Decisions on the International Criminal Court Doc.EX.CL/670(XIX); also AU Peace and Security Council, Decision on the Peaceful Resolution of the Libyan Crisis, Extraordinary Session of the Assembly of the Union on the State of Peace and Security in Africa, EXT/ASSEMBLY/AU/DEC/(01.2011) 25 May 2011.
121 Generally see JE Wokoro 'Towards a model for African humanitarian intervention' (2008) 6 Regent journal of International Law 1 15-18, arguing that the West's interests in Africa have been need based provides the scramble for Africa and the Cold War as examples of how only the need of the West can make Africa the centre of interest; JE Frazer 'Reflections on US policy in Africa, 2001-2009' (2010) 34 Fletcher Forum of World Affairs 95 105-107, briefly describing the US's counterterrorism initiatives and other interests in Africa; RP McAleavey 'Pressuring Sudan: The prospect of an oil-for-food programme for Darfur' (2008) 31 Fordham International Law journal 1058 1066-1067, stating that the inability of the Security Council to impose sanctions against Sudan has been primarily due to Chinese veto power and the expression of their willingness to use this power if such a binding resolution was voted on; D Haroz 'China in Africa: Symbiosis or exploitation?' (2011) 35 Fletcher Forum of World Affairs 65 77, stating that China's investment policy does not take human rights practices into consideration.
122 See generally NJ Udombana 'Back to basics: The ACP-EU Cotonou trade agreement and challenges for the African Union' (2004) 40 Texas International Law journal 59.
123 'NATO and the African Union pursue dialogue on Libya, North Atlantic Treaty Organisation' 31 May 2011 http://www.nato.int/cps/en/natolive/news_74968.htm (accessed 31 January 2012).
124 A Hansen 'The French military in Africa, Council on Foreign Relations' 8 February 2008, http://www.cfr.org/france/french-military-africa/p12578#p2; S Stearns 'UN and French forces attack Gbagbo's heavy weapons in Abidjan' 10 April 2011.
125 Generally see TM Mays 'African solutions for African problems: The changing face of African-mandated peace operations' (2003) 23 journal of Conflict Studies; D Peterson 'Finding African solutions to African problems' (1998) 21 Washington Quarterly; Müller (n 61 above).
126 M Goldmann 'Sierra Leone: African solutions to African problems?' (2005) 9 Max Planck Yearbook of United Nations Law 457, especially 459 fn 5; L Lawson 'US Africa policy since the Cold War' (2007) 5-1 Strategic Insights; A Purvis 'The Somalia syndrome' Time 22 May 2000.
127 See Human Rights Watch 'Observations and Recommendations on the International Criminal Court and the African Union in advance of the 17th African Union Summit' 26 June 2011.
128 'South Africa legally rebuts AU resolution on arresting Bashir' 3 August 2009, http://www.sudantribune.com/spip.php?article31996 (accessed 31 January 2012); 'Botswana says Sudan's Bashir will be arrested if he visits' Sudan Tribune 10 June 2009, http://www.sudantribune.com/spip.php?article31449 (accessed 31 January 2012); 'Botswana says Bashir still vulnerable for arrest on its territory despite AU resolution' Sudan Tribune 16 August 2010, http://www.sudantribune.com/spip.php?article35980 (accessed 31 January 2012); also see 'Botswana stands by International Criminal Court, Ministry of Foreign Affairs and international co-operation' 28 July 2010, http://www.iccnow.org/documents/BotswanaStandsByICC_28Jul2010_en.pdf (accessed 31 January 2012).
129 Djibouti, Chad, Uganda, Malawi and Kenya have invited Al-Bashir and pledged not to arrest him despite the fact that all three are members of the Rome Statute; see 'Sudan's President Bashir defies arrest warrant in Chad' BBC News Africa http://www.bbc.co.uk/news/world-africa-10718399 (accessed 31 January 2012); 'Court worry at Omar al-Bashir's Kenya trip' BBC News Africa http://www.bbc.co.uk/news/world-africa-11117662 (accessed 31 January 2012); 'Djibouti has specifically declared that Al-Bashir would not be arrested if in its territory though Al-Bashir would not travel to Djibouti because of the French and US military presence in the country' Sudan Tribune; 'Djibouti will not honour its Rome Statute obligations, invites Sudan's Bashir' 6 April 2009, http://www.sudantribune.com/spip.php?article30777 (accessed 31 January 2012); 'Uganda pledged to arrest Al-Bashir until the July 2010 AU Summit when it invited him to attend'; Aljezeera 'Uganda invites al-Bashir to summit: Kampala reverses decision to bar Sudan's President, wanted by ICC, from AU gathering' http://english.aljazeera.net/news/africa/2010/06/201068123447183209.html (accessed 31 January 2012). In addition to these member states to the Rome Statute, Al-Bashir has visited Ethiopia, Eritrea, Zimbabwe and Egypt; although Kenya is one of the states that are opposed to the arrest of Al-Bashir, a Kenyan High Court issued an arrest warrant against him causing great concern on the side of the foreign ministry; D Miriri & A Dziadosz 'Kenya, Sudan move to fix fallout from Bashir ruling' Reuters Africa 30 November 2011; 'Sudan's Omar al-Bashir in Malawi: ICC wants answers' BBC News 20 October 2011, http://www.bbc.co.uk/news/world-africa-15384163 (accessed 31 January 2012).
130 See eg M du Plessis The International Criminal Court that Africa wants (2010) 20-21; K Ainley 'The International Criminal Court on trial' BISA Annual Conference 18, 15 December 2009; 'The International Criminal Court: Why Africa still needs it' The Economist 3 June 2010; 'Gadhaffi indictment hinders peace: African Union' CBS News 2 July 2011, http://www.cbc.ca/rn/touch/news/story/2011/07/02/world-african-union-gadhafi.htm (accessed 31 January 2012); A Arieff et al 'International Criminal Court cases in Africa: Status and policy issues' Congressional Research Service .15 2 April 2010, http://fpc.state.gov/documents/organization/141591.pdf (accessed 31 January 2012); S Akaki 'Zimbabwe coalition: African solutions to African problems?' The African Executive 1 October 2008, http://www.africanexecutive.com/modules/magazine/articles.php?article=3575 (accessed 31 January 2012).
131 Generally see AM Ibrahim 'The International Criminal Court in light of controlling factors of the effectiveness of international human rights mechanisms' (2010-2011) 7 Eyes on the ICC 157 177-186, discussing how the ICC and specifically the Office of the Prosecutor can minimise the perception of bias on the side of the ICC.
132 See 'Sudan may lose access to EU funds under Cotonou agreement' Sudan Tribune 25 April 2009, http://www.sudantribune.com/spip.php?article30980 (accessed 31 January 2012).
133 A list of signatories and members of the Rome Statute can be found on the website of the Coalition for the International Criminal Court, http://www.icc-cpi.int/Menus/ASP/States+Parties/African%20States (accessed 1 December 2011).
134 Art 4(g) states: 'The Union shall function in accordance with the following principles: ... (g) condemnation and rejection of unconstitutional changes of governments'(my emphasis); and art 30 states: 'Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.'
135 Economist Intelligence Unit, Democracy Index 2011: Democracy Under Stress 4 (2011); also see Economist Intelligence Unit, Democracy Index 2010: Democracy Under Stress 3 (2010) (giving South Africa the same score for 2010) that translates roughly as 2% full democracies, 16,6% flawed democracies, 24% hybrid regimes and 50% authoritarian regimes.
136 Generally see MG Marshall & K Jaggers (Principal Investigators), Polity IV Country Reports 2010, Authority Trends, 1946-2010: South Africa, http://www.systemicpeace.org/polity/polity06.htm; Polyarchy dataset, Measures of democratisation 1999-2000 (April 2002) http://www.prio.no/sptrans/1141086495/file42500_democracy_1999-2000.pdf (accessed 31 January 2012).
137 Freedom House 'Freedom in the world 2011: Subscores (2011)' http://www.freedomhouse.org/template.cfm?page=635; Freedom House 'Map of freedom: Sub-Saharan Africa' (2010) http://www.freedomhouse.org/uploads/fiw10/FIW_2010_Map_Africa.pdf; Freedom House, Map of Freedom: Middle East and North Africa (2010) http://www.freedomhouse.org/uploads/fiw10/FIW_2010_Map_MENA.pdf. Freedom House produced its index based on a seven-point scale (with 1 representing the most free and 7 the least free) in which questions relating to the electoral process (three questions), political pluralism and participation (4), and functioning of government (3), freedom of expression and belief (4), associational and organisational rights (3), rule of law (4), and personal autonomy and individual rights (4) are used to scale states as 'free' (1.0 to 2.5), 'partly free' (3.0 to 5.0) and 'not free' (5.5 to 7.0). See Freedom House Methodology (2008) http://www.freedomhouse.org/template.cfm?page=351&ana_page=341&year=2008; see also J Sarkin 'Dealing with Africa's human rights problems: The role of the United Nations, the African Union and Africa's sub-regional organisations in dealing with Africa's human rights problems: Connecting humanitarian intervention and the responsibility to protect' Hofstra University Legal Studies Research Paper 09-01, (2009) Journal of African Law 1-2, describing the findings of numerous other statistics sowing to a similar conclusion.
138 Freedom House Map offreedom:Sub-SaharanAfrica (2009) http://www.freedomhouse.org/uploads/fiw09/MOF09_SSAfrica_FINAL.pdf (accessed 31 January 2012).
139 Viljoen (n 73 above) 63; also see Odinkalu (n 51 above) 398-400; Beyani (n 51 above) 587-588; D Olowu 'Regional integration, development and the African Union agenda: Challenges, gaps, and opportunities' (2003) 13 Transnational Law and Contemporary Problems 211 243-245, outlining the dire financial situation of the AU); also see n 74 and accompanying text above.
140 The probability of the African Commission becoming successful in this respect is small. First, the Commission's proceedings are not open to the public. Second, publication of the Commission's reports is an annual affair and is contingent upon the Assembly's authorisation (the Assembly has not always been co-operative in this regard). Third, the Commission has always had problems with financial resources that are necessary for any public relations activity. See generally Heyns (n 77 above) 700-702; Welch (n 49 above) 555.
141 See generally F Viljoen International human rights law in Africa (2007) 324-325; also Viljoen (n 73 above) 1 8-9, stating that NGOs have been lobbying for the formation of the African human rights court since the formation of the African Commission.
142 Nyanduga (n 42 above) 261, concluding that the role of NGOs is crucial in the African Commission's conclusions and decisions, especially on the finding of facts.
143 Eg note the withdrawal of Western multi-nationals from Darfur for fear that their public image may be tarnished by NGO human rights activism. See RO Matthews 'Sudan's humanitarian disaster: Will Canada live up to its responsibility to protect?' (2005) 60 International journal 1049 1050-1053 1055, describing how Canadian civil society institutions were instrumental in influencing the withdrawal of Talisman from Sudan.
144 Generally see JP Martin et al 'Promoting human rights education in a marginalised Africa' in GJ Andreopoulos & RP Claude (eds) Human rights education for the twenty-first century (1997); also RP Claude 'The right to education and human rights education' (2005) 2 SUR International journal on Human Rights, describing the activities of NGOs in human rights education, including in Africa and elsewhere; Andreopoulos & Claude (above) 436, describing in detail the activities of NGOs independent of the African regional political system.
145 Not counting states in which the level of repression precluded demonstrations. Arab Spring-inspired demonstrations have taken place in Uganda, Zimbabwe, Angola, Malawi, Burkina Faso, Sudan, Djibouti, Mauritania and South Africa. See C Ero 'The political changes in North Africa and the Middle East and the implications for sub-Saharan Africa' Open Society Institute - Africa Governance Monitoring and Advocacy Project, August 2011.
146 Young democracies have been shown to be reluctant regarding the promotion of democracy in their foreign policy. See PB Mehta 'Do new democracies support democracy?' (2011) 22 Journal of Democracy 101; T Carothers & R Youngs 'Looking for help: Will rising democracies become international democracy supporters?' (2011) The Carnegie Papers; T Piccone 'Do new democracies support democracy? The multilateral dimension' (2011) 22 Journal of Democracy 139.
147 N Machiavelli (trans WK Marriott) The prince (2005) 92.
148 See M Killander 'The African Peer Review Mechanism and human rights: The first reviews and the way forward' (2008) 30 Human Rights Quarterly 41 54, concluding that, while most African states have not made any effort to live up to their human rights promises and norms, they show overwhelming acceptance of the rights in their rhetoric.
149 Full membership of AU states to the Rome Statute would certainly be helpful in this respect.
150 The lack of funding has been the most persistent problem facing the African Commission. However, this is primarily a failure of the political organs rather than the Commission itself.
151 While the African Commission's referral of the Libyan situation is interesting, there was no point in referring this case to the Court since the Commission could itself had issued an interim measure according to Rule 111 of its Rules of Procedure. The Commission should refer cases that have a jurisprudential significance.