ARTICLES

The rule of law: Approaches of the African Commission on Human and Peoples' Rights and selected African states

Jamil Ddamulira Mujuzi

Senior Lecturer, Faculty of Law, University of the Western Cape, South Africa

SUMMARY

The African Commission on Human and Peoples' Rights is empowered to promote and protect human rights in Africa. Although the African Charter on Human and Peoples' Rights does not expressly use the phrase 'rule of law', the African Commission has interpreted its mandate under the African Charter as allowing it to promote and protect the rule of law in Africa. The article looks at four mechanisms through which the African Commission has attempted to promote the rule of law - in its resolutions, individual communications, promotional missions and through the periodic reports of state parties to the African Charter. The article shows that the African Commission has given different meanings to the concept of the rule of law. The article shows that, in their periodic reports to the African Commission, different African states have different understandings of the rule of law and have taken different measures to promote the rule of law in their jurisdictions. What is apparent is that the promotion and protection of human rights are crucial elements in rule of law discourse.

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* LLB (Hons) (Makerere), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLM (Free State), LLD (Western Cape); djmujuzi@gmail.com
1 Art 30 African Charter on Human and Peoples' Rights, adopted 27 June 1981, entered into force 21 October 1986; OAU Doc CAB/LEG/67/3 Rev 5 (1982) 21 International Legal Materials 58; reprinted in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2010) 29.
2 See F Ouguergouz The African Charter on Human and Peoples' Rights - A comprehensive agenda for human dignity and sustainable democracy in Africa (2003); F Viljoen International human rights law in Africa (2007).
3 Arts 55 & 56.
4 Protocol Relating to the Establishment of the Peace and Security Council of the African Union. Para 13 of the Preamble provides that African leaders are aware 'of the fact that the development of strong democratic institutions and culture, observance of human rights and the rule of law ... are essential for the promotion of collective security, durable peace and stability, as well as for the prevention of conflicts'. Art 3(f) provides that one of the objectives of the Peace and Security Council of the African Union is to 'promote and encourage ... the rule of law ... as part of efforts for preventing conflicts'. Art 4(c) provides that one of the principles by which the Peace and Security Council will be guided is the 'respect for the rule of law'. Under art 5(2)(g), one of the criteria for a member state to be elected to the Peace and Security Council is that that state has respect for the rule of law.
5 See M Neumann The rule of law: Politicising ethics (2002) 1; S Beaulac 'The rule of law in international law today' in G Palombella & N Walker (eds) Relocating the rule of law (2009) 197-198.
6 It adopted that phrase from an article which has very little to do with the discussion of the concept of rule of law, at least directly. See P Gaeta 'When is the involvement of state officials a requirement for the crime of torture?' (2008) 6 journal of International Criminal Justice 183.         [ Links ]
7 For a detailed discussion of the various elements of the rule of law, see A Bedner 'An elementary approach to the rule of law' (2010) 2 Hague journal of the Rule of Law 48-74.         [ Links ] See also M Krygier 'The rule of law: Legality, Teleology, sociology' in Palombella & Walker (n 5 above) 49; Neumann (n 5 above) 23-50.
8 Eg, T Bingham The rule of law (2010), who gives the history of the rule of law from the Magna Carta of 1215 to the Universal Declaration of Human Rights (10-32). The author also discusses the rule of law by looking at issues such as accessibility of the law, human rights, dispute resolution and the role of parliament. See DM Beatty The ultimate rule of law (2004), where the author analyses judgments from courts in different countries to discuss how the rule of law has been protected by such courts on issues such as liberty, equality, fraternity and proportionality.
9 Eg, it has been argued that 'politically-charged concepts like the rule of law are not defined for lexicographic or semantic purposes; they are defined according to an agenda.' See Neumann (n 5 above) 23.
10 Krygier (n 7 above) 45-69.
11 As quoted in Beaulac (n 5 above) 199.
12 As above.
13 As above.
14 As above.
15 As above.
16 Krygier (n 7 above) 52-55.
17 T Bingham The rule of law (2010) 10-32.
18 Resolution on the Establishment of a Committee on the Protection of the Rights of People Living with HIV, and Those at Risk, Vulnerable to and Affected by AIDS, ACHPR/Res 163(XLVII) 2010.
19 Resolution on the Protection of Human Rights Defenders in Africa, ACHPR/Res 69(XXXV)04, Preamble, para 1.
20 Resolution on Nigeria, ACHPR/Res 16(XVII)95, para iv.
21 Resolution on The Gambia, ACHPR/Res 17(XVII)95, Preamble para 2; Resolution on the Situation in Comoros, ACHPR/Res 34(XXV)99, Preamble para 5.
22 Resolution on The Gambia, ACHPR/Res 13(XVI)94, para 3(iii).
23 Resolution on Elections in Africa, ACHPR/Res 133(XXXXIIII)08, para 1 (emphasis in original).
24 Of course, the law in question should not be perceived as oppressive, at least by the majority, and should also not be discriminatory against the minority. However, this debate is outside the ambit of this article.
25 (20 09) AHRLR 268 (ACHPR 2009) para 118.
26 Zimbabwe Lawyers for Human Rights (n 25 above) para 78.
27 Zimbabwe Lawyers for Human Rights (n 25 above) para 118. In Bissangou v Republic of Congo (2006) AHRLR 80 (ACHPR 2006), the African Commission held that 'by virtue of the rule of law', it is incumbent upon government ministers to honour court judgments; see para 71. The Minister of Finance had refused to pay the applicant's money although the Court had ordered that the applicant should be compensated by the government as a result of his property being damaged and stolen by government soldiers.
28 In fact, the African Commission expressly held that '[t]he independence of the judiciary is a crucial element of the rule of law'. See Article 19 vEritrea (2007) AHRLR 73 (ACHPR 2007) para 66. It also held that 'where the judiciary cannot function properly the rule of law must die'. See Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe (2009) AHRLR 235 (ACHPR 2009) para 89.
29 Amnesty International & Others v Sudan (2000) AHRLR 297 (ACHPR 1999) para 79. The African Commission held that the illegal detention and torture of opposition leaders by the Sudanese government violated several provisions of the African Charter.
30 Article 19 v Eritrea (n 28 above) para 108.
31 Constitutional Rights Project & Another v Nigeria (2000) AHRLR 191 (ACHPR 1998) para 58.
32 Communication 313/05, Kenneth Good v Republic of Botswana, 28th Activity Report para 193.
33 Media Rights Agenda & Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) para 59.
34 Zimbabwe Human Rights NGO Forum vZimbabwe (2006) AHRLR 128 (ACHPR 2006) para 67. See Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe vZimbabwe (n 28 above) para 176.
35 Amnesty International vZambia (2000) AHRLR 325 (ACHPR 1999) para 42.
36 Peoples' Democratic Republic of Algeria's Third and Fourth Periodic Reports to the African Commission on Human and Peoples' Rights (August 2006) 4.
37 Algeria's Third and Fourth Periodic Reports (n 36 above) 5-6.
38 Periodic Report of Burkina Faso to the African Commission on Human and Peoples' Rights on the Implementation of the African Charter on Human and Peoples' Rights October 1998-December 2002 (July 2003) 5.
39 Periodic Report of Burkina Faso (n 38 above) 7-13.
40 Periodic Report of Burkina Faso (n 38 above) 19.
41 As above.
42 As above.
43 Second Periodic Report on Cameroon within the Framework of the African Charter on Human and Peoples' Rights (report not dated) para 93.
44 Second Periodic Report on Cameroon (n 43 above) para 94.
45 As above.
46 See Initial and Cumulative Report of the Central African Republic on the African Charter on Human and Peoples' Rights (January 2006) 27.
47 Initial and Cumulative Report of the Central African Republic on the African Charter on Human and Peoples' Rights (January 2006) 27.
48 As above. The report also indicates that the Central African Republic 'by subscribing to the relevant procvisions [sic] of the Charter solemnly re-affirmed in the preamble to the Constitution on 27th December 2004 that, determined to build a state with the rule of law based on pluralisty [sic] democracy guaranteeing the security of individuals and their property, the protection of the weakest, notably vulnerable persons 41 (emphasis in original).
49 Initial and Cumulative Report of the Central African Republic (n 47 above) 28.
50 Initial and Cumulative Report of the Central African Republic (n 47 above) 28-29.
51 See Periodic Report of the Republic of Benin on the Implementation of the Rights and Freedoms Enshrined in the African Charter on Human and Peoples' Rights (2008) 29.
52 Initial Report of the Democratic Republic of Congo to the African Commission on Human and Peoples' Rights (April 2002) 12.
53 Initial Report of the Democratic Republic of Congo (n 52 above) 24.
54 Initial Report of the Democratic Republic of Congo (n 52 above) 32.
55 Federal Democratic Republic of Ethiopia's Combined Report (Initial and Four Periodic Reports) to the African Commission on Human and Peoples' Rights (report not dated) para 1.
56 Federal Democratic Republic of Ethiopia's Combined Report (n 55 above) para 12.
57 Federal Democratic Republic of Ethiopia's Combined Report (n 55 above) para 40.
58 Federal Democratic Republic of Ethiopia's Combined Report (n 55 above) para 443.
59 Federal Democratic Republic of Ethiopia's Combined Report (n 55 above) para 473.
60 Madagascar Periodic Report in Accordance with the African Charter on Human and Peoples' Rights (2008) para 297.
61 Madagascar Periodic Report (n 60 above) para 299.
62 The Republic of Mauritius's Second, Third, Fourth and Fifth Combined Reports under the African Charter on Human and Peoples' Rights (2008) 3.
63 Mauritius's Second, Third, Fourth and Fifth Combined Reports (n 62 above) 12.
64 Mauritius's Second, Third, Fourth and Fifth Combined Reports (n 62 above) 66.
65 Mauritius's Second, Third, Fourth and Fifth Combined Reports (n 62 above) 80.
66 Initial and Periodic Report of the Republic of Niger to the African Commission on Human and Peoples' Rights on the Implementation of the African Charter on Human and Peoples' Rights 1988-2002 (report not dated) 5.
67 Initial and Periodic Report of the Republic of Niger (n 66 above) 6. See also 22.
68 Initial and Periodic Report of the Republic of Niger (n 66 above) 84.
69 Nigeria's Third Periodic Country Report: 2005-2008 on the Implementation of the African Charter on Human and Peoples' Rights (September 2008) 29.
70 Nigeria's Third Periodic Country Report (n 69 above) 75.
71 Republic of South Africa's First Periodic Report on the African Charter on Human and Peoples' Rights (2001) 57.
72 South Africa's First Periodic Report (n 71 above) 62.
73 Seventh Periodic Report of Rwanda to the African Commission on Human and Peoples' Rights 1999-2002 (February 2003) 7.
74 Seventh Periodic Report of Rwanda (n 73 above) 8. See also 26, where the government reports that it was engaged in a 'permanent . to overcome certain difficulties and pursue the re-establishment of the rule of law in general, and to promote respect for human rights in particular'.
75 Seventh Periodic Report of Rwanda (n 74 above) 10.
76 Seventh Periodic Report of Rwanda (n 74 above) 19.
77 Seventh Periodic Report of Rwanda (n 74 above) 27.
78 Eighth Periodical Report of Rwanda to the African Commission on Human and Peoples' Rights 2002-2004 (March 2005) 9.
79 Eighth Periodical Report of Rwanda (n 78 above) 11.
80 Eighth Periodical Report of Rwanda (n 78 above) 27.
81 Ninth and Tenth Periodic Report of the Republic of Rwanda under the African Charter on Human and Peoples' Rights 2005-July 2009 (July 2009) para 106.
82 Ninth and Tenth Periodic Report of the Republic of Rwanda (n 81 above) para 181.
83 Ninth and Tenth Periodic Report of the Republic of Rwanda (n 81 above) para 219.
84 Third Periodic Report of Sudan Pursuant to Article 62 of the African Charter on Human and Peoples' Rights: It Comprises the Required Reports up to April 2003 (April 2003) para 31.
85 Periodic Report of Sudan (n 84 above) para 32.
86 Third Periodic Report of the Republic of the Sudan under Article 62 of the African Charter on Human and People's [sic] Rights (May 2006) para 29.
87 Third Periodic Report of the Republic of the Sudan (n 86 above) para 59.
88 Third Periodic Report of the Republic of the Sudan (n 86 above) para 160.
89 Third Periodic Report of the Republic of the Sudan (n 86 above) para 88.
90 Third Periodic Report of the Republic of the Sudan (n 86 above) para 156.
91 See The Republic of Uganda Report to the [African] Commission on Human and Peoples' Rights Presented at the 39th Ordinary Session of the [African] Commission on Human and Peoples' Rights Banjul, The Gambia (May 2006) para 10.6.
92 Uganda Report (n 91 above) para 10.7.
93 Uganda Report (n 91 above) para 27.21.
94 Zambia's Initial Report to the African Commission on Human and Peoples' Rights (not dated) para 119(b).
95 Zambia's Initial Report (n 94 above) para 311. See also para 537.
96 Advance Copy of the Summary of Zimbabwe's First Report to the African Commission on Human and Peoples [sic] Rights (1992) para 6.1.
97 Advance Copy of the Summary of Zimbabwe's First Report (n 96 above) 20.
98 As above.
99 The Republic of Zimbabwe 7th, 8th, 9th and 10th Combined Report under the African Charter on Human and Peoples' Rights (October 2006) 46.
100 Zimbabwe 7th, 8th, 9th and 10th Combined Report (n 99 above) 11.
101 Executive Summary of the Report of the Fact-finding Mission to Zimbabwe 24-28 June 2002, para 5.
102 Report of the Promotion Mission to the Republic of Ghana 1-5 September 2008, para 169 (emphasis in original).
103 Report of the Promotion Mission to the Republic of Ghana (n 102 above) para 182.
104 Mission Report to the Republic of Botswana 14-18 February 2005 8.
105 Mission Report to the Republic of Botswana (n 104 above) 34.
106 Report of the Promotional Mission to the Republic of Guinea Bissau 16-22 March 2005 15.
107 Report of the Promotional Mission to the Republic of Guinea Bissau (n 106 above) 19.
108 Executive Summary of the Report of the Fact-finding Mission to Zimbabwe 24-28 June 2002 30.