Department of Public Law

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Browsing Department of Public Law by Subject "Access to Justice"

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    The legitimacy of the African Court on Human and Peoples’ Rights after the withdrawal of Rwanda, Tanzania, Benin, and Côte d’Ivoire from Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
    (Stellenbosch : Stellenbosch University, 2023-12) De Klerk, Derick Ras; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : The African continent is plagued by systemic human rights violations. These violations are often perpetrated by states against marginalised communities such as ethnic, sexual and gender minorities. Victims of human rights violations must, as a principle of international law, exhaust domestic remedies before they approach international human rights courts. However, access to justice and to an appropriate remedy under domestic law is far from the norm for African victims of human rights violations. As such, it is vitally important that Africa has a strong regional human rights system. With the adoption of the African Charter on human and Peoples’ Rights and the establishment of the African Commission of Human and Peoples’ Rights (“African Commission”) and the African Court on Human and Peoples' Rights (“African Court”), victims have been empowered to seek redress at a regional level. However, the African Commission is not empowered to deliver binding judgments, and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“Court Protocol”) does not afford individuals an automatic right to directly petition the African Court. Individuals may only petition the African Court directly on condition that the respondent state has made an optional declaration in terms of Article 34(6) of the Court Protocol. States have never petitioned the African Court and the African Commission has only done so on three occasions. As such, the African Court relies on the petitions of individuals to receive new applications and develop its jurisprudence. The inclusion of Article 34(6) has, thus, raised debates amongst the Justices of the African Court and academics alike, with some arguing that its inclusion poses a risk to the African Court’s legitimacy as a human rights protector. In 2016, Rwanda withdrew its optional declaration under Article 34(6), followed by Tanzania, Benin and Côte d’Ivoire, limiting potential applications to the African Court even further. This thesis assesses the legitimacy of the African Court after these withdrawals. Theoretical considerations of state sovereignty, the right of access to regional justice and the principle of complementarity underpins the research. Furthermore, the theoretical framework developed by Madsen et al. with regard to state resistance to international courts is applied to further analyse the withdrawals. Ultimately, this thesis seeks to provide an evaluation of the contemporary legitimacy of the African Court insofar as it relates to its ability to adequately fulfil its human rights protective mandate.