Mirna E. Adjami
abstracted from: Mirna E. Adjami, African Courts,
International Law, and Comparative Case Law: Chimera or Emerging Human
Rights Jurisprudence?, 24 Michigan Journal of International Law 103-167,
103-108 (Fall 2002) (324 Footnotes)
State collapse, humanitarian crisis, and war are the faces of Africa
that the world sees today. Lost in the tide of dark images are
incremental steps for the protection of human rights. In the most
dysfunctional of African countries, the skeletons of State institutions
still stand. Some judiciaries have even started to engage in a
progressive and sophisticated discussion of international human rights
Member States of the Organization of African Unity (OAU) formalized
their rhetorical commitment to the promotion and protection of human
rights with the adoption of the African Charter of Human and Peoples'
Rights in 1981. Since the Charter's signing, critics have disparaged the
African human rights system for its failure to establish a court that
would safeguard and enforce the rights guaranteed in the Charter. In
1994, the OAU began the process of establishing an African Court of
Human and Peoples' Rights. Given the lackluster performance of the
African Charter's primary guardian institution, the African Commission,
many commentators believed that the time had not yet come for the
establishment of a court.
Misgivings aside, the OAU adopted the Draft Protocol to the African
Charter on Human and Peoples' Rights on the Establishment of an African
Court on Human and Peoples' Rights in June 1998. Since then, the Draft
Protocol and the proposed African Court have been the focus of scrutiny
by scholars of the African regional human rights system. The proposed
African Court has also captured the attention of international law
scholars analyzing the proliferation of international courts and the
effect of this phenomenon on international law.
Though the potential creation of a supranational human rights court
has brought international attention to the African human rights system,
international law and human rights scholars rarely turn to African
examples when studying the domesticapplication of international human
rights norms. This Article seeks to fill that gap by analyzing cases
from several Anglophone common law countries in sub-Saharan Africa that
invoke international law and comparative case law as interpretive
support in their national fundamental rights jurisprudence.
Part I of this Article develops the conceptual framework for the
examination of these cases by outlining theories of national judicial
enforcement of human rights in Africa. First, it explores the
technicalities of the relationship between international law and
municipal law and shows how surprising the use of international sources
is given their nonbinding status in domestic legal systems. It then
traces the trend toward human rights constitutionalism through the
post-independence creation of justiciable bills of rights. This Part
proceeds with an examination of the debate between universalism and
particularism of human rights in the African context and concludes with
an overview of the role and responsibility of African judiciaries in
enforcing human rights.
It is in this context that Part II examines selected cases from
Botswana, Namibia, Nigeria, South Africa, Tanzania, Zambia, and Zimbabwe
that invoke international law and comparative case law. The cases
discussed here were chosen because they highlight several distinct modes
of interpretation. Part II first examines how African courts invoke
international sources for support in adopting a broad policy of
constitutional interpretation. It then explores how courts have relied
on international sources in determining the substantive scope of
fundamental rights, focusing on cases concerning corporal and capital
punishment under constitutional provisions guaranteeing the freedom from
"inhuman and degrading punishment." Part II concludes with a
discussion of the tensions between international norms, the exercise of
judicial license, and African traditions.
Researching African case law is a true challenge. Most African
judiciaries function on the scarcest of financial resources. In these
circumstances, compiling cases in law reports is the last priority. As
such, most national decisions in African countries remain unpublished,
and those that are printed in reporters are still difficult to access.
Nevertheless some African States do publish quasi-regular law reports.
Most of these regular reports are from Southern African countries or
African Commonwealth countries. Given the irregularity of the
publication of case law, any comprehensive search for African case law
is unscientific and incomplete. Consequently, the cases examined in Part
II were selected from a small subsection of national cases that were
discovered that draw on international and comparative law in their
fundamental rights jurisprudence.
This Article uses the shorthand "international sources" to
refer to the full range of international authorities that these African
courts reference in their decisions. These sources include international
human rights instruments and decisions of international tribunals.
Additionally, the courts rely on comparative jurisprudence, drawing
authority from other common law countries, particularly from members of
By examining these judicial decisions this Article seeks to highlight
the potential of the African State, through the judiciary, to play a
positive role as an enforcer and protector of human rights at the
national level. It takes this position not with the na´ve belief that
the judicial protection of human rights can substitute for the
grassroots development of a human rights culture or the
consciousself-restraint of other branches of government in complying
with human rights obligations, but rather with the view that the
judiciaries can and do play a pivotal role in developing a normative
climate in which such developments can occur.
This Article, therefore, does not address how the political climate
of a country limits, even undermines, the role of judiciaries in African
States. Most sobering is the reality that many of the countries whose
jurisprudence is examined in this Article do not respect the rule of
law. Their judiciaries are also not fully independent. Authoritarian
governments have intervened to overturn progressive court decisions on
human rights issues by fiat or have reigned in the judiciaries when the
judges have been deemed to exercise too much independence.
The decisions examined in this Article illustrate how African courts
have used international law and comparative case law as interpretive
tools in their domestic rights jurisprudence. Even within the context of
repressive regimes and dysfunctional States, and despite the challenges
to the legitimacy of human rights in the African context, there exists
the potential for the indigenous judicial acceptance of international
human rights norms that can contribute to the expansion of a global
human rights jurisprudence.
. Visiting Research Scholar, Ralph Bunche Institute for International
Studies, The Graduate Center at The City University of New York. J.D.,
Harvard Law School, 2000, B.A., Brown University, 1996.
. The African Charter on Human and Peoples' Rights, opened for
signature June 21, 1981, OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted
in 21 I.L.M. 59 (1982) [hereinafter African Charter].