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Afrikanischer Menschenrechtsschutz - Neuere Entwicklungen und Perspektiven: Der Afrikanische Gerichtshof der Rechte des Menschen und der Völker und die Mauritius-Erklärung der Organisation der Afrikanischen Einheit
Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America
Vol. 34, No. 4 (2001), pp. 474-488
Published by: Nomos Verlagsgesellschaft mbH
Stable URL: http://www.jstor.org/stable/43238975
Page Count: 15
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The actual situation of the African human rights system is marked by two decisive developments: the establishment of the African Court on Human and Peoples' Rights by the Protocol to the African Charter on Human and Peoples' Rights from 9 June 1998, not yet in force, and the Grand Bay (Mauritius) Declaration and the Plan of action, adopted on 16 April 1999 at the OAU's First Ministerial Conference on Human and Peoples' Rights. The Protocol to the African Charter on Human and Peoples' Rights on the establishment of the African Court on Human and Peoples' Rights, with its jurisdiction over contentious cases, grants the right for individuals and Non Governmental Organizations to bring complaints directly before it - although this right is not an automatic one: the possibility for an individual to lodge a complaint directly before the Court depends on the special declaration of. the state to accept the Court's jurisdiction in such a case. Thus, a state could sign and ratify the Protocol without granting an independent and direct right of complaint for the individual before the Court - a situation comparable on the original version of the European Convention on Human Rights, not corresponding on the present system after the Protocol n° 11 to the European Convention on Human Rights came into force. Nevertheless, the new African Court as an independent, juridical organ represents an important enforcement for the protection of human rights in Africa. But besides the Court, the African Commission on Human and Peoples' Rights doesn't become superfluous due of its mandate to investigate on general human rights violations and situations as such in the African states, independently of an individual case. But the future of the new African Court on Human and Peoples' Rights is faced with financial problems influencing the work of the existing African Commission on Human and Peoples' Rights which is also financed by the OAU: it is to be feared that financial deficits will mark the practical work of the Court with the same negative consequences for an insufficient technical and personal situation. The Mauritius Declaration and the Plan of action is on a political point of view a clear confession regarding the priority given to the human rights problem within the OAU;furthermore, it clearly points out the existing human rights violations in the African states. Legally spoken, the Mauritius Declaration is not a binding instrument, but a simple declaration of an OAU organ which is not empowered to impose obligations on the OAU members. Nevertheless, the Mauritius Declaration can reach certain legal impacts. Firstly, in being transformed by the members states into national plans of actions like it is proposed in the Declaration (in its point 28). Secondly, the Mauritius Declaration can serve as an document of interpretation for the African Court on Human and Peoples' Rights and for the African Commission on Human and Peoples' Rights regarding the unclear formulations of the African Charter of Human and Peoples' Rights. Especially the references in the African Charter on the "African traditions" which have to be saved for example by the family (art. 18 section 2 African Charter) become much more clear with the support of the Mauritius Declaration because the Declaration points out that only positive African traditions which conform with universal values, like human dignity and tolerance (point 5 of the Declaration), are integrated in the Human Rights system. In this meaning, negative traditions, in the context of marriage or such as the genital mutilation, which are a danger for women and children can not to be protected by African Human Rights documents, including the African Charter of Human and Peoples' Rights. In this view, the Mauritius Declaration could fulfill the important task to clarify the decisive African human rights document, the African Charter of Human and Peoples' Rights. In summary, both, the African Court on Human and Peoples' Rights and the Mauritius Declaration, have to assume their special function in the African Human rights system in complementing each other: the Court grants a more effective protection for the individual; the Mauritius Declaration will promote the human rights situation in general and will tackle the human rights problem on its roots.
Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America © 2001 Nomos Verlagsgesellschaft mbH