The discussion in this paper includes a background of the formation (architecture) and the role of accountability played by the regional human rights system (i.e. the African Human Rights System in particular as it is the topic under discussion).
The African Human Rights System is seen by many as a weak mechanism that ought to aim for the promotion and protection of human rights in the region. This could be as a result of various legal, professional and financial incapacities. In essence, the urgent need for adjustment in the African Human Rights system prompts me to end with some possible recommendations in this article taking my point of reference from other regional human rights systems such as the Inter-American human rights system.
The article also reveals the functional weaknesses of the regional Human Rights system which includes vague provisions in the African Charter, weak judicial arbitration and State
compliance mechanisms. Recommendations in this article are drawn from the Inter-American Human Rights system which has more effective implementation mechanisms.
Table of Contents
1. Introduction
2. Historical Background on Functional Framework
3. Weaknesses of the System [with recommendations]
4. Conclusion
Research Objectives and Themes
The primary objective of this paper is to critically analyze the functional and structural weaknesses of the African Human Rights system by comparing it to the more established Inter-American human rights system to identify potential avenues for reform.
- Architectural formation and accountability roles of regional human rights systems.
- The impact of "clawback" clauses and vague legal provisions on human rights protection.
- Comparative analysis of judicial arbitration and state compliance mechanisms.
- The role of the African Court versus the African Commission in enforcement.
- Recommendations for institutional reform based on the Inter-American model.
Excerpt from the Book
3. Weaknesses of the System [with recommendations]
Deducing from the above paragraph, it could be understood that the African Human Rights System is weakened by certain factors which makes it fall short of being an effective mechanism for the protection and promotion of human rights in the region due to its structural formation and limited functioning especially with regards to its less noticed accountability role in addressing human rights violations by its member states.
One of these shortcomings is caused by the 'clawback' clauses and vague provisions with regards to enforcing certain rights. These are clauses that offer certain rights, at the same time limit such rights by using certain terms in the provision such as where a provision is made and then followed or preceded by 'except for reasons and conditions previously laid down by law', 'subject to law and order', 'within the law', 'abides by the law', as well as other forms of justification for the 'protection of National Security' among other restrictions, that enable countries with draconian laws (most of which were in place since colonialism and hence not familiar to the young African human rights system of the Charter) to use it as an opportunity to restrict the basic human rights of its citizens to the extent allowed by domestic law without fearing accountability for such violations on the justification of such clawback clauses that the African regional instrument (African Charter) provides.
Summary of Chapters
1. Introduction: Outlines the three levels of human rights systems—National, Regional, and International—and establishes the focus on the African Human Rights System with the Inter-American system as a comparative reference.
2. Historical Background on Functional Framework: Details the formation and structure of the African Human Rights system, specifically the roles of the African Commission and the African Court.
3. Weaknesses of the System [with recommendations]: Identifies structural flaws, such as "clawback" clauses and vague provisions, and suggests reforms based on the more effective implementation mechanisms found in the Inter-American system.
4. Conclusion: Summarizes the findings and reiterates the necessity of revising both the Charter and institutional mechanisms to restore public confidence in the regional human rights system.
Keywords
African Human Rights System, Inter-American system, Clawback clauses, Human rights enforcement, African Charter, Judicial arbitration, State compliance, Accountability, Regional human rights, Institutional reform, Protection of rights, Legal incompatibility, African Union, Human rights violations, Protocol
Frequently Asked Questions
What is the central focus of this research paper?
The paper examines the perceived ineffectiveness of the African Human Rights system, analyzing its structural and functional deficiencies in protecting human rights within the region.
What is the primary objective of the author?
The goal is to propose specific recommendations for reforming the African system by adopting successful mechanisms from the Inter-American human rights system.
What are the main thematic areas discussed?
Key themes include the impact of "clawback" clauses, the lack of clarity in legal provisions, the role of judicial arbitration, and the challenges regarding state compliance with human rights obligations.
Which scientific methodology is applied here?
The author employs a comparative legal analysis, evaluating the African Human Rights system against the Inter-American human rights system to highlight operational differences and potential improvements.
What does the main body of the work cover?
It covers the historical architecture of the African system, critiques the specific legal weaknesses of the African Charter, and compares these with the Inter-American Convention's approach to state obligations.
Which keywords best characterize this work?
The work is characterized by terms such as Complementarity, Clawback clauses, Charter, Treaty, Convention, and regional human rights systems.
Why does the author consider "clawback" clauses problematic?
The author argues that these clauses allow states to use vague terminology to restrict fundamental rights under the guise of "national security" or "law and order," thereby evading accountability for violations.
How does the author view the role of the African Court versus the Commission?
The author suggests that the current division of duties is inefficient and advocates for a restructuring where the Court takes a more central role in protective functions, rather than relying on the Commission's currently limited effectiveness.
- Quote paper
- Ebrima Sowe (Author), 2019, The weaknesses of the African Human Rights system in comparison with the Inter-American regional human rights System, Munich, GRIN Verlag, https://www.grin.com/document/509902
