Browsing by Author "Thomas, Irene Nyakagere"

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    The application of the principle of complementarity in the relationship between the African Court and the African Commission under the Regional African Human Rights System
    (Stellenbosch : Stellenbosch University, 2021-12) Thomas, Irene Nyakagere; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The principle of complementarity has great potential in enhancing the engagement between the African Commission on Human and Peoples Rights (African Commission) and the African Court on Human and Peoples Rights (African Court) to improve and strengthen the protection of human rights on the African continent. As observed in this research, the shared and overlapping mandates of these institutions can only be effectively coordinated if they work together in a planned, structured, and constructive way. As argued in this research, a well informed and developed application of the principle of complementarity could aid in achieving the overlapping mandates of these institutions, enhance access to justice within the regional African human rights system and facilitate the maximisation of the limited financial resources allocated to the two institutions. The 17 years of co-existence between the African Commission and African Court have witnessed various efforts geared towards activating the principle of complementarity. This includes case transfers and reform of the Rules of Procedure of the two institutions. However, the application of complementarity in the relationship between the African Commission and the African Court still faces serious challenges. The main hurdles being the ambiguity of, and minimum recourse to the complementarity provisions by the two institutions. In a quest to unlock the potential of the principle of complementarity, this research adopts a theoretical framework that speaks not only to the legal component of the discourse but also to its organisational component. The analysis is informed by a fusion of reinforcement theory and relevant elements of organisational theory. To establish a frame of reference to guide the analysis of the application of the principle of complementarity in the relationship between the African Commission and the African Court the research also analyses other complementary institutional arrangements in international law such as the United Nations’ human rights compliance mechanisms, the International Criminal Court system, the Inter-American human rights system as well as the European human rights system. The research findings demonstrate the need for the incorporation of the organisational component in the deliberations and strategies adopted by the two institutions with regard to their complementary relationship. By drawing inspiration from other regional and international complementary institutional arrangements, the research further highlights that the lack of express articulation of the modes of engagement in the complementarity arrangement between the African Commission and the African Court does not bar the development of mutual enforcement strategies. Instead, it could inspire flexibility and progressive transformation to ensure that the normative framework does not restrict complementarity.