A Comparative Study Of The African And The European Regional Systems For Protection Of Human Rights: Lessons For Africa

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A Comparative Study Of The African And The European Regional Systems For Protection Of Human Rights: Lessons For Africa


Abstract


This study is on a comparative study of the European regional system for protection of human right: lesson for Africa. The total population for the study is 200 staff of national human right commission, Abuja. The researcher used questionnaires as the instrument for the data collection. Descriptive Survey research design was adopted for this study. A total of 133 respondents made lawyers, administrative officers, senior staff and junior staff were used for the study. The data collected were presented in tables and analyzed using simple percentages and frequencies


Chapter One


Introduction

1.1 Background of the Study

The issue of human rights has traditionally remained within the preempted province of the state. Thus, the manner in which a state treated its own nationals and the people within its borders remained outside the realm of International law (Burgenthal, 1995: 3). But, this was gradually changed after the Second World War as evidenced by the signing of the United Nations (UN) Charter and the Universal Declaration of Human Rights (UDHR). Therefore, the modern international human rights law1, by implication the international protection of human rights, is a twentieth century development and closely associated to the adoption of the UN Charter in 1945. Another major development in the twentieth century regarding human rights is the evolution of the regional human rights systems. Regional human rights systems are schemes for promotion and protection of human rights within certain geopolitical region. Among the regional systems, European system is the oldest one and the Council of Europe (CoE) is the first regional organization to enlist human rights as one of its foundational principles. And in 1950, the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly called the European Convention, ECHRa) was adopted by the member states of the CoE. Considering the achievements and contributions made by the American and European system of regional Human Rights protection, the urge is for the similar methods and protection mechanisms for violation of Human Rights in Africa Region. The concept of regionalism is not novel in Africa, as the step of regionalism has already been initiated with the institutionalization of the Africa Association for Regional Human Rights Cooperation. Though it has been working as a regional mechanism and as an instrument for the problems relating to human rights in Africa regions, effective implementation is still in its infancy. The comparison with the European model is very often focused in terms of economics and politics, where the issues of human rights are given the least preferences. In light of that, I would like to make an inference to the human rights protection mechanism in European system and take it as an inspiration in Africa model. In this region, the challenge of Human Rights development has continued for several decades against large scale Human rights violations. Even though there are universal human rights protection mechanisms, they have not been able to penetrate the thick layer of human rights problem in Africa and able to resolve these problems in the grass root level. And ironically, this is the region in the world which lacks a robust regional human right protection mechanism. Even though in Africa all the essential elements of an effective regional human rights mechanism are in place, the system still suffers from some important deficiencies that affect its effectiveness, deficiencies that are mainly of a structural nature. One obstacle to the effective functioning of the African human rights mechanism is the lack of political determination of some member states to cooperate with and participate constructively in the regional mechanism. For instance, states are held to biannually report to the Commission on their efforts in implementing the African Charter on Human and People’s Rights with the aim of establishing an objective dialogue on the improvements and the still-existing gaps that each state has to face regarding human rights protection. This theoretically effective mechanism suffers from the possibility of falling under malign political influence and the unwillingness of states to accept external criticism on their human rights records; as a result, the biannual report has remained a rather ineffective instrument. The same applies to the African Peer Review Mechanism (APRM), an innovative monitoring process consisting of a national self-assessment based on a questionnaire, the drafting of a Program of Action to remedy identified shortcomings, an international review, a country visit and the final country review report. However, the fruits of the mechanism are significantly reduced since only 29 countries have accepted the APRM. Furthermore, deficiencies in institutional capacity undermine the proper functioning of the human rights protection system. The African Commission, together with its Special Rapporteurs and working groups, has the potential to set standards as it was already proven with the establishment of the Robben Island Guidelines or with the various decisions and opinions released by the Commission. However, the Commission suffers not only notorious under-funding but also of human capital, since most Commissioners hold high-ranking national positions. This raises, of course, additional concerns about the independence of the Commissioners. Great expectations lay on the African Court which published its first judgment in December 2009 (rejecting an individual application against Senegal on the basis that Senegal has not accepted individual applications). However, up to that date, not every African state had accepted its jurisdiction. Similar to the Inter-American system, individual complaints are only possible through the Commission except when member states accept through an ad hoc declaration the use of the individual complaint procedure. Yet, once again, reaching the court is not the only issue at stake when it comes to enhancing human rights protection in Africa; another important point is whether the Court has sufficient financial and human resources. With this in mind, independent judges would play a major role in the proper functioning of the African human rights protection system and, consequently, emphasis should be put on their training and recruiting. Somewhat differently from other regional systems, the African Commission has a strong promotional mandate with regard to human rights, the implementation of which, however, is hampered by insufficient financial means. Such a promotional mandate is not in tandem with the civil society, as happens in the Americas. In the analysis of the role of NGOs in Africa, it is hard to treat the continent as one entity. Civil society is able to flourish with a certain degree of democracy and institutional protection of individuals, but, these conditions vary greatly between states. In many African countries the space for civil society and, in particular, for the work of NGOs as supporters of the regional human rights protection system, still needs to be created. An appropriate legislative framework, transparency and accountability have to be put forward in the state-design. States are nonetheless not alone in their responsibility to provide such space for NGOs. All stakeholders of the society have to participate in it (e.g. lowering violence and insecurity, providing support for local NGOs, rendering legal mechanisms more accessible to the people, etc). 1 Regardless of the number of NGOs that exist in Africa, one of the most effective activities in reporting human rights violations within states remains in the governmental organizations domain as the NEPAD’s peer review mechanism exemplifies


1.2 Statement of the Problem

The concept of regionalism is not novel in Africa, as the step of regionalism has already been initiated with the institutionalization of the Africa Association for Regional Human Rights Cooperation. Though it has been working as a regional mechanism and as an instrument for the problems relating to human rights in Africa regions, effective implementation is still in its infancy. The comparison with the European model is very often focused in terms of economics and politics, where the issues of human rights are given the least preferences. In light of that, I would like to make an inference to the human rights protection mechanism in European system and take it as an inspiration in Africa model. On this background the researcher wants to investigate a comparative study of the European regional system for protection of human right: lesson for Africa.


1.3 Objective of the Study

The objectives of the study are;

  1. To ascertain the impact of European regional system for protection of human right
  2. To assess the effectiveness of human right law in Africa
  3. To examine the implication of violating human right law in Africa

1.4 Research Hypotheses

For the successful completion of the study, the following research hypotheses were formulated by the researcher;

  1. H0: there is no impact of European regional system for protection of human right
    H1: there is impact of European regional system for protection of human right
  2. H02: there is no effectiveness of human right law in Africa
    H2: there is effectiveness of human right law in Africa

1.5 Significance of the Study

This study will give clear insight on a comparative study of the European regional system for protection of human right: lesson for Africa. This study will be beneficial to students and the general public. It will also serve as a reference to other researchers


1.6 Scope and Limitation of the Study

The scope of the study covers a comparative study of the European regional system for protection of human right: lesson for Africa. The researcher encounters some constrain which limited the scope of the study;

a) Availability of Research Material:

The research material available to the researcher is insufficient, thereby limiting the study

b) Time:

The time frame allocated to the study does not enhance wider coverage as the researcher has to combine other academic activities and examinations with the study.

c) Organizational Privacy:

Limited Access to the selected auditing firm makes it difficult to get all the necessary and required information concerning the activities


1.7 Definition of Terms

Regional System:

Regional Systems. Economic, social and cultural rights are also protected at the regional level. Apart from the universal mechanisms for protecting ESCR, there are three regional systems that protect these rights: the African System, the American System and the European System

Protection:

The action of protecting, or the state of being protected.

Human Right:

Human rights are moral principles or norms that describe certain standards of human behaviour, and are regularly protected as natural and legal rights in municipal and international law


1.8 Organization of the Study

This research work is organized in five chapters, for easy understanding, as follows

  • Chapter one is concern with the introduction, which consist of the (overview, of the study), historical background, statement of problem, objectives of the study, research hypotheses, significance of the study, scope and limitation of the study, definition of terms and historical background of the study.
  • Chapter two highlights the theoretical framework on which the study is based, thus the review of related literature.
  • Chapter three deals on the research design and methodology adopted in the study.
  • Chapter four concentrate on the data collection and analysis and presentation of finding.
  • Chapter five gives summary, conclusion, and recommendations made of the study

Chapter Five


Summary, Conclusion and Recommendation

5.1 Introduction

It is important to ascertain that the objective of this study was to ascertain a comparative study of the European regional system for protection of human right: lesson for Africa. In the preceding chapter, the relevant data collected for this study were presented, critically analyzed and appropriate interpretation given. In this chapter, certain recommendations made which in the opinion of the researcher will be of benefits in addressing the challenge of European regional system for protection of human right: lesson for Africa


5.2 Summary

This study was on a comparative study of the European regional system for protection of human right: lesson for Africa. Three objectives were raised which included: To ascertain the impact of European regional system for protection of human right, to assess the effectiveness of human right law in Africa, to examine the implication of violating human right law in Africa. In line with these objectives, two research hypotheses were formulated and two null hypotheses were posited. The total population for the study is 200 staff of national human right commission, Abuja. The researcher used questionnaires as the instrument for the data collection. Descriptive Survey research design was adopted for this study. A total of 133 respondents made lawyers, administrative officers, senior staff and junior staff were used for the study. The data collected were presented in tables and analyzed using simple percentages and frequencies


5.3 Conclusion

Africa has been traumatized by human rights violations of historic proportions over the last five centuries. But the peoples of Africa, like peoples elsewhere, have never stopped struggling for better conditions of life, and especially for more enlightened and accountable political societies. The popular repudiation of one party and undemocratic states over the past decade has once again given hope that the predatory impulses of the post-colonial state might be arrested. At the continental level, NGOs and human rights advocates have demanded that the African Commission become part of this movement towards change. This is the lense through which Africans now view the African human rights system. While it is felt by many Africans that the idea of the African Commission was a step in the direction, there are serious misgivings that it has been largely ineffectual. Further, that a regional human rights system worth its name need strong institutions to anchor its norms. The African Human Rights Court is an attempt to fulfill that promise. However, the court promises to be a disappointment unless states parties revisit the African Charter and strengthen many of its substantive provisions. Moreover, the court will not meet the expectations of Africans if the OAU does not provide it with material and moral support to allow it to function as the independent and significant institution that it ought to be. Finally, of course, the initial integrity and vitality of the court will rest with those who will be privileged to serve as its first bench. Unless these conditions are met, the African Human Rights Court is condemned to remain a two-legged stool, a lame institution unable to fulfill its promise as a seat from which human rights can be advanced. In that case, the court will have failed to redeem the troubled African regional system.


5.4 Recommendation

As a quasi-judicial institution with a mandate to promote human and peoples’ rights, the African Commission could better engage in dialogue with political entities, State officials and right bearers in order to address structural or systemic barriers and to dialogically design strategies for cooperation and institutional capacity building. Given its bold and innovative interpretation of its institutional mandate and the African Charter, its increasingly better-argued and better-written decisions, the submission of State reports under Article 62 could be used as a tool in the hands of the Commission to foster better compliance


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