AN APPRAISAL OF THE ROLE OF ECOWAS COURT OF JUSTICE AND THE SOUTHERN AFRICAN DEVELOPMENT (SADC) TRIBUNAL IN THE PROTECTION OF HUMAN RIGHTS

AN APPRAISAL OF THE ROLE OF ECOWAS COURT OF JUSTICE AND THE SOUTHERN AFRICAN DEVELOPMENT (SADC) TRIBUNAL IN THE PROTECTION OF HUMAN RIGHTS

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ABSTRACT

The concept of Human Rights is a very fundamental subject in international law. Human Rights aim at promoting and protecting humanity through the courts. The ECOWAS community court of justice and the southern African Development community tribunal play a very important role in the area of promoting and protecting Human rights in their respective regions. The aim of this dissertation is to appraise the role of ECOWAS community court of justice and the southern African Development community tribunal in the protection of Human Rights in Africa. The objective of this dissertation therefore is to highlight some weaknesses in the promotion and protection of Human Rights and to suggest some workable recommendations. One major finding of this dissertation is the issue of enforcement of the court decisions. The decisions of the ECOWAS community court of justice and the Southern African Development Community Tribunal are usually not enforceable. They rely mainly on the commitment of member states. This dissertation therefore recommends that the courts should engage in massive sensitization of judicial authorities of member states on the issues of enforcement as justice without enforcement is impotent. To achieve this, the doctrinal method of research will be adopted.

CHAPTER ONE

GENERAL INTRODUCTION

1.1       Background to the Study

Human Rights mean that human rights serve to protect and promote the dignity of human

beings worldwide1. Human rights can be seen as a legal codification of the concept of human

dignity. Despite different regional perceptions and arguments relating to cultural relativism, the

concept of human rights and their universality is generally accepted, although these always have

to be seen in their specific contexts2. Human rights, as a legal concept and codification of human

dignity, were late to arrive in Africa. Its evolution in Africa is to be seen against the background

of the dynamic development of human rights within the United Nations system and that of

international law, although the impetus of this evolution is owed to the struggles within African

states in the colonial and post-independence eras3.

The role of the Organization of African Unity (OAU) and its successor, the African

Union (AU), must also be acknowledged here. Since the OAU‟s inception in 1963, several

organizations‟ instruments and mechanisms have come to the fore, aiming at promoting and

protecting human rights in Africa. The adoption of the African Charter on Human and Peoples‟

Rights in 1981 is considered a milestone in this regard, as are the establishment of the African

Commission on Human and Peoples‟ Rights and the associated African Court of Human and

Peoples‟ Rights. In addition, regional economic communities have set up their own organizations

and instruments aiming at promoting human rights in their respective regions4.

1 Eborah, S.T (2009) Litigating Human Rights before Sub-regional Courts in Africa: Prospects and Challenges, African Journal of International and Comparative Law. p.45-84

2 ibid 3 ibid

4 Bosel, A, and Diacho, J. (2009) Human Rights Law in Africa: Legal Perspective on their promotion and protection, McMillan Education Namibia. p. 319-350.

1


The ECOWAS Court of Justice for example had made a number of rulings on human

rights issues. In 2008, the Court took a pioneering decision concerning slavery: The State of the

Niger was convicted having violated the human rights of one of its citizens. While the Court

found that Niger was not itself responsible for the discrimination– the plaintiff was subjected to

by a non-State actor, namely her former master – the country was found in violation of its

international obligations to protect Mrs Hadijatou Mani from slavery under international as well

as national law because of its tolerance, passivity, inaction, and abstention with regard to the

practice. Niger had to pay reparations in the amount of 10 million CFA francs (more than 20,000

US-Dollar)5. The judgment6 has been referred to as historic, because this is one of the first

slavery cases ever to be won at the international level.

This is the first judgment of the ECOWAS court to address serious human rights

violations. It heralds an important role for this and potentially other regional economic courts in

the determination of human rights issues. While less experienced in human rights law than

certain other bodies, the court showed itself open and receptive to international and comparative

law arguments. It sat in the state where the violations occurred, therefore allowing critical access

by the victim, witnesses and civil society to the court proceedings, with an important impact on

the debate on slavery in Niger. The court heard the case and issued ju


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