Compendium of African sub-regional human rights documents

Solomon Ebobrah, Armand Tanoh

Description

African sub-regional inter-governmental organisations are taking on an increasingly important role in the promotion and protection of human rights. It is against the background that knowledge of available standards and mechanisms is crucial for greater enjoyment of the increasing opportunities for remedies for human rights violations that this collection of human rights instruments became necessary.This Compendium brings together relevant instruments from eight sub-regional organisations: the Arab Maghreb Union (AMU), the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC), the International Conference on the Great Lakes Region, the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on Development (IGAD) and the Southern African Development Community (SADC). The Compendium also includes a selection of human rights cases decided by the East African Court of Justice, the ECOWAS Court of Justice and the SADC Tribunal.African sub-regional inter-governmental organisations function within the ambit of the African Union (AU). Human rights documents of the AU and resolutions and case law of the African Commission on Human and Peoples’ Rights are published in the Compendium of key human rights documents of the African Union also available from PULP.About the editors:Solomon Ebobrah is Extra-ordinary lecturer, Centre for Human Rights and Lecturer, Niger Delta University, NigeriaArmand Tanoh is a researcher at The Centre for Human Rights, University of Pretoria, SOCIETE D'AVOCATS JURICA, United Nations Economic Commission for Africa

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2010
• Nombre de lectures: 0
• EAN13: 9780981442099
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

COMPENDIUM OF AFRICAN SUB-REGIONAL HUMAN RIGHTS DOCUMENTS

Solomon Ebobrah & Armand Tanoh (editors)

2010

Compendium of African Sub-Regional Human Rights Documents

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see: www.chr.up.ac.za/pulp

To order, contact:

Centre for Human Rights Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

Printed and bound by:

ABC Press Cape Town

Cover design:

Lizette Besaans, the Centre for Human Rights

ISBN:978-0-9814420-9-9

The financial assistance of the Danish Institute for Human Rights is gratefully acknowledged.

INTRODUCTION

Table of Contents

THE ARAB MAGHREB UNION (AMU/UMA)

Treaty Establishing the Arab Maghreb Union (1989)

THE COMMON MARKET FOR EASTERN AND SOUTHERN AFRICA (COMESA) Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA) (1993/1994) COMESA Gender Policy (2002) Annex I: Addis Ababa Declaration on the COMESA Gender Policy

THE EAST AFRICAN COMMUNITY (EAC) East African Community Treaty (as amended) (1999/2000) The East African Gender and Community Development Framework (2006) Case law of the East African Court of Justice Katabazi and Others v Secretary General of the East African Community and Another(2007) AHRLR 119 (EAC 2007) The East African Law Society and 3 Others v The Attorney General of Kenya and 3 Others(EACJ 2008)

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1

1

3

3

21 34

37

37 58

67 67

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INTERNATIONAL CONFERENCE ON THE GREAT LAKES REGION 93 Dar-Es-Salaam Declaration on Peace, Security, Democracy 93 and Development in the Great Lakes Region (2004) Pact on Security, Stability and Development in the Great 96 Lakes Region (2006/2008) Protocol for the Prevention and the Punishment of the 105 Crime of Genocide, War Crimes and Crimes Against Humanity and all forms of Discrimination (2006/2008) Protocol on the Prevention and Suppression of Sexual 115 Violence against Women and Children (2006/2008) Annex to the Protocol On the Prevention and Suppression 120 of Sexual Violence against Women and Children Protocol on the Protection and Assistance to Internally 127 Displaced Persons (2006/2008) Protocol on the Property Rights of Returning Persons 139 (2006/2008) Protocol Against the Illegal Exploitation of the Natural 149 Resources (2006/2008) Protocol on Democracy and Good Governance 157 (2006/2008) The Goma Declaration on Eradicating Sexual Violence and 168 Ending Impunity in the Great Lakes Region (2008)

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THE ECONOMIC COMMUNITY OF CENTRAL AFRICAN STATES (ECCAS) Treaty Establishing the Economic Community of Central African States (ECCAS) (1983/1984) Protocol Relating to the Council for Peace and Security in Central Africa (COPAX) (2000/2004)

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173

179

THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES 183 (ECOWAS) The Treaty ofthe Economic Community of West 183 African States (1993/1994) Protocol on the Community Court of Justice (1991/1996) 194 Supplementary Protocol Amending Protocol Relating 199 to the Community Court of Justice (2005/2005) Protocol Relating to the Mechanism for Conflict Prevention, 203 Management, Resolution, Peace-keeping and Security (1999/1999) Protocol on Democracy and Good Governance Supple- 220 mentary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace- keeping and Security (2001/2008) Protocol Relating to Free Movement of Persons, Residence 231 and Establishment ((1979/1980) Supplementary Protocol on the Code of Conduct for the 235 Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment (1985/1989) Supplementary Protocol on the Second Phase (Right of 240 Residence) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment ((1986/1989) Supplementary Protocol on the Implementation of the 248 Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, Right of Residence and Establishment (1990/1992) Declaration on the Fight Against Trafficking in Persons 252 (2001) Accra Declaration on War-Affected Children in West Africa 256 (2000) Declaration of Political Principles of The Economic 259 Community of West African States (1991) Case law of the ECOWAS Community Court of Justice 261 Ugokwe v Nigeria and Others(ECOWAS 2005) 261 Kéϊta and Another v Mali266(ECOWAS 2007) Essien v The Republic of The Gambia and Another(2007) 271 AHRLR 131 (ECOWAS 2007) Manneh v The Gambia(2008) AHRLR 171 (ECOWAS 2008) 278 Koraou v Niger286(2008) AHRLR 182 (ECOWAS 2008) Registered Trustees of the Socio-Economic Rights &298 Accountability Project (SERAP) v Federal Republic of Nigeria & Another(ECOWAS 2009)

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THE INTERGOVERNMENTAL AUTHORITY ON DEVELOPMENT (IGAD) Agreement Establishing the Intergovernmental Authority on Development (IGAD) (1996) Protocol on the Establishment of a Conflict Early Warning and Response Mechanism (CEWARN) (2002) Sexual and Reproductive Health and Rights Strategic Policy framework, 2007-2015 (2006)

THE SOUTHERN AFRICA DEVELOPMENT COMMUNITY (SADC)

Treaty of the Southern African Development Community (1992/1993) SADC Protocol on Combating Illicit Drugs (1996/1999) SADC Protocol on Education and Training (1997/2000) SADC Protocol on Health (1999/2004) Protocol on Tribunal and Rules of Procedure thereof (2000/2001) Protocol on the Control of Firearms, Ammunition and Other Related Materials (2001/2004) SADC Protocol on Politics, Defence and Security Co-operation (2001/2004) SADC Protocol Against Corruption (2001/2005)

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346 351 367 375

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407

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SADC Social Charter (2003/2003) 420 SADC Protocol on Gender and Development (2008/) 425 SADC Principles and Guidelines Governing Democratic 438 Elections (2004) Declaration of SADC on Gender and Development (1997) 443 An Addendum to the 1997 Declaration on Gender and 445 Development by SADC Heads of State or Government (1998) SADC Declaration on HIV/AIDS (2003) 448 SADC Parliamentary Forum Norms and Standards for 452 Elections in the SADC Region (2001)

Model Law on HIV in Southern Africa (2008) Case law of the SADC Tribunal Mike Campbell (Pvt) Limited and Others v Zimbabwe(2008) AHRLR 199 (SADC 2008) Tembani v Zimbabwe(SADC T 2009)

CHART OF RATIFICATIONS: ECOWAS CHART OF RATIFICATIONS: SADC

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465 482 482

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509

Introduction

In 1981 when the African Charter on Human and Peoples’ Rights (African Charter) was adopted, the foundation for the African regional human rights system was effectively laid. The birth of the African regional human rights system signalled the end of the debate on the question whether regionalism in human rights was a desirable development. With the African Charter as its centre piece, the African human rights system experienced tremendous growth in standard setting and in the creation of supervisory mechanisms. For a long time, the growth of the system remained within the framework of the Organisation for African Unity (OAU) and its successor organisation, the African Union (AU) upon which the African Charter was adopted. Consequently, the continental body practically laid an unspoken claim to and retained exclusive competence in the field of human rights in Africa. Human rights documents of the OAU/AU have been published in theCompendium of key human rights documents of the African Union (Pretoria University Law Press).

If there were any disadvantages that resulted from the AU’s exclusive claim to competence in the field of human rights in Africa, there were certainly clear advantages also. One such advantage was the fact that relevant instruments of the African human rights system flowed from a single fountain of authority and human rights actors and stakeholders could access these instruments with relative ease. Within the last two decades, the AU’s claim to exclusive competence in the field of African supra-national human rights has come under challenge from regional economic communities (REC) in different parts of the continent. The RECs which, in most cases were founded as vehicles for economic development through integration have gradually veered into the field of human rights. The invasion by the RECs has occurred as much in standard setting as it has been in the proliferation of supervisory mechanisms, especially by way of the increasing involvement of the judicial organs of the RECs in protection of human rights. Thus, regionalism in Africa’s human rights law and processes has decentralised further into the subregions as represented by the RECs. With this process of decentralisation comes the threat of greater difficulty of access to relevant human rights instruments in the African continent. This is exacerbated by the number of RECs that have involved themselves in some or other form of human rights realisation.

As at December 2009, there were at least 14 identifiable regional economic groupings in Africa. Of these, the AU formally recognised eight as building blocks for the African Economic Community (AEC). The RECs recognised by the AU are the Arab Maghreb Union (AMU/UMA), the Common Market for Eastern and Southern Africa (COMESA), the Community of Sahel-Saharan States (CEN-SAD), the East African Community (EAC), the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on Development (IGAD) and the Southern Africa Development Community (SADC). A perusal of the constitutive instruments will show that most of these organisations have included some reference to the promotion and protection of human rights in those instruments. More often than not, such reference to the promotion and protection of human rights in the constitutive instruments have been taken further by way of adoption of human rights instruments or instruments with implication for human rights realisation. Thus, the body of relevant instruments that actors and stakeholders in the field of human rights should be familiar with has increased tremendously. In addition to some of the RECs recognised by the AU, one other subregional grouping, the International Conference on the Great Lakes Region (ICGLR) has made great

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strides in human rights standard setting. All of these international organisations have contributed to the growth of human rights in Africa but they also threaten certainty and access to human rights source documents.

It is against the background that knowledge of available standards and mechanisms is crucial for greater enjoyment of the increasing opportunities for remedies for human rights violations that this collection of human rights instrument became necessary. We have identified RECs with budding human rights realisation regimes as well as those with legal frameworks that hold the potential for greater activities in the field of human rights. In order to give the reader an idea of the legal basis upon which human rights activities in each REC is hinged, we have added excerpts of the founding or constitutive instruments of the RECs included in this compendium. The compendium further contains all protocols and declarations of the various RECs that can be termed human rights instruments. We have also included some documents that may not strictly be termed human rights instruments but could be said to have implications for the enjoyment of human rights. Instruments in this latter category include the protocols that set up the judicial organs of the RECs. The compendium also contains some jurisprudence from the judicial organs of some RECs. The cases included have been selected either because they clarify the procedures for the admissibility of human rights cases before the relevant judicial organs or they contain clear pronouncements on substantive rights. The cases included give a fair representation of the growing human rights jurisprudence emerging from these institutions. More human rights cases are available in the African Human Rights Case Law Database, which can be accessed from the web site of the Centre for Human Rights, www.chr.up.ac.za.

As much as possible, we have tried to include some information on the dates that the instruments were adopted and entered into force. We have also included explanatory notes on the cases contained in this compendium. It is our hope that human rights practitioners, policy makers, lawyers, academics, law students and all other interested parties will find this compilation easy to use. It is our further hope that this compendium would trigger greater interest in the human rights activities of the RECs in Africa.

We are very grateful to the Danish Institute for Human Rights (DIHR) for their generous financial support for this project and to Ulrik Spliid, senior adviser at DIHR, for his suggestions on what should be included in this compendium. We also gratefully acknowledge the kind assistance of Magnus Killander in the compilation and editing process. The painstaking work of Lizette Besaans in the production process is most appreciated. The encouragement and support we got from Frans Viljoen, Director of the Centre for Human Rights, was invaluable.

The project of building a continent in which respect for human rights is the norm rather than the exception is a multi-dimensional venture. The involvement of the RECs in the field of human rights is just one of many dimensions. This compendium is a little contribution to encourage that dimension of the project. We hope that the reader will find it a useful tool in furthering respect for human rights on the African continent.

Solomon T Ebobrah Editor Researcher Centre for Human Rights, University of Pretoria

March 2010

Armand Tanoh Editor Researcher Centre for Human Rights University of Pretoria

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THE ARAB MAGHREB UNION (AMU/UMA)

The Treaty establishing the Arab Maghreb Union was adopted in Marrakech, Morocco in 1989 by Algeria, Libya, Mauritania, Morocco and Tunisia. Although Morocco has pulled out of the African Union, the UMA is recognised by the African Union as one of the regional economic communities in Africa. The Treaty of the UMA has been ratified by all the member states. Although it is recognised by the AU as a building block of the AEC, AMU/UMA does not currently have any formal relation with the AU. Website: http://www.maghrebarabe.org

Treaty Establishing the Arab Maghreb Union (1989)

The Treaty establishing the AMU/UMA was adopted on 17 February 1989. All the member states have ratified the AMU/UMA Treaty.

Excerpts [The leaders of the member states] Having faithin the solid links that unite the people of the Arab Maghreb and that are founded on a communal history, religion and language; Respondingto the profound and firm aspirations of these people and their leaders to establish a Union that further reinforces these existing ties between them and advances the possibility of reuniting all possible means to orient ourselves towards a greater integration; Consciousof the effects that would result from such an integration, and the possibility of an Arab Maghreb Union that could attain a certain significance that would permit it to contribute effectively to a global balance, to consolidate peaceful relations at the centre of the international community and to consolidate international peace and security; Consideringthat the traditions of the Arab Maghreb Union necessitate tangible realisations and the setting up of common regulations which would concretise an effective solidarity between its members and increase their economic and social development; Expressingtheir sincere determination to work towards an Arab Maghreb Union which would be an avenue for the realisation of complete Arab unity and a point of departure for a larger union, encompassing other Arab and African states; HAVE RESOLVED THE FOLLOWING:

Article 1 A Union called the Arab Maghreb Union is constituted by virtue of this Treaty.

Article 2 The Union aims to:  Reinforce the fraternal links that unite the member states and their peoples;  Realise the progress and prosperity of member societies and the defence of their rights;

1

2AMU/UMA



 

Contribute to the preservation of a peace founded on justice and equality; Pursue a common political policy in different domains; Work towards the progressive realisation of the free movement of persons, services, goods and capital.

Article 3 The common political policy mentioned in the preceding article has as its goal to put into effect the following objectives:  On the international level, the realisation of a straight forward diplomatic cooperation founded on dialogue;  In the area of defence, the safeguarding of the independence of each member state;  In the area of the economy, the realisation of industrial, agricultural, commercial, and social development of member states and the bringing together of all necessary means to this effect, notably, by establishing common projects and expanding on global and sectoral programs;  In the area of culture, the establishment of cooperation aimed at developing teaching at different levels, that would preserve the spiritual and moral values inspired by the generous teachings of Islam, and to safeguard the national Arab identity whilst endowing itself with the necessary means to realise these objectives, notably for the exchange of teachers and students, and the creation of universities and cultural institutions, as well as institutes of Maghreb research. […]

Article 13 The Union is equipped with a Judicial Authority composed of two judges from each member state, who are designated for a period of six years, of which half are renewed every three year period. This Authority elects its president from amongst its members for a period of one year. The aforementioned Authority has as its competence to rule on disagreements relative to the interpretation and application of the Treaty and agreements concluded under the framework of the Union, that it then submits to the Presidential Council or one of the state parties in the dispute, conforming with the framework of the present Treaty. Its judgments are binding and final. The aforementioned Authority prepares its own statute and submits it for the approval of the Presidential Council. This statute forms an integral part of the present Treaty. The Presidential Council sets up the Judicial Authority and fixes its budget.

Article 14 Any aggression against one member state is considered as aggression against the other member states.

Article 15 Member states undertake to never allow on their respective territories any activity or organisation which threatens the security, territorial integrity or political system of one of the member states. They agree equally to abstain from forming a part of any pact, military or political alliance, which is directed against the political independence or territorial unity of another member state. […]

THE COMMON MARKET FOR EASTERN AND SOUTHERN AFRICA (COMESA)

The Treaty of the Common Market for Eastern and Southern Africa (COMESA) was adopted in 1993 to replace the Preferential Trade Area of Eastern and Southern African States (PTA). COMESA is currently composed of Burundi, the Comoros, Democratic Republic of Congo, Djibouti, Egypt Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe. Website: http://www.comesa.int

Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA) (1993/1994)

The Treaty establishing the Common Market for Eastern and Southern Africa (COMESA) was signed on 5 November 1993 in Kampala, Uganda. The Treaty entered into force on 8 December 1994.

Excerpts

Preamble […] CONSCIOUS of the overriding need to establish a Common Market for Eastern and Southern Africa; BEARING IN MIND the establishment among their respective States of the Preferential Trade Area for Eastern and Southern African States as a first step towards the creation of a Common Market and eventually of an Economic Community for Eastern and Southern Africa; RECALLING the provisions of Article 29 of the Treaty for the Establishment of the Preferential Trade Area for Eastern and Southern African States to the effect that steps should be taken to develop the Preferential Trade Area established by that Treaty into a Common Market and eventually into an Economic Community; RECALLING further the decision of the Authority of the Preferential Trade Area for Eastern and Southern African States taken at its Tenth Meeting held in Lusaka, Zambia from 30 - 31 January, 1992 to transform the Preferential Trade Area for Eastern and Southern African States into a Common Market for Eastern and Southern Africa; INSPIRED by the objectives of the Treaty for the Establishment of the African Economic Community and in compliance with the provisions of Article 28(1) of the said Treaty; DETERMINED to mark a new stage in the process of economic integration with the establishment of a Common Market for Eastern and Southern Africa and the consolidation of their economic cooperation through the implementation of common policies and programmes aimed at achieving sustainable growth and development; RESOLVED to strengthen and achieve convergence of their economies through the attainment of a full market integration;

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