Faculty of Law
Centre for Human Rights
Selected Highlights from Research Findings
This research paper was presented by the author for discussion by the UN Expert Group Meeting on the APRM that took place on 15-17 November in New York, USA. The objective of the research is to conduct an audit of the implementation of the APRM particularly but not only on the five peered countries Ghana, Rwanda, Kenya, South Africa and Algeria. As part of an effort to promote international partnerships, the UN requested Professor Hansungule to conduct the research focusing mostly on promoting understanding of the concept of the APRM within the overall concept of democratization of African society and particularly to bring out lessons leant and experiences from the peer review processes already conducted. Interesting findings include the fact that the rate of implementation of the Action Plans endorsed by peers in the reports of Ghana, Rwanda and Kenya - the first three countries to undergo the process - is below five (5) percent. Of the three countries, Ghana - the maiden country to be peered - heads the list with roughly twenty per cent of its Plan implemented or being implemented. Simultaneously, donor response to the Action Plans has been low, lying below the five per cent mark. Private sector support for the Action Plans in these countries was also low.
Contact person: Prof M Hansungule.
The research was conducted at the request by the Zambian NGO Women for Change (WfC). WfC is a human rights organisation which specialises on promoting women’s rights in Zambia. It requested a research-based analysis of the Bill government in Zambia introduced in the middle of the year to determine the extent to which it (Bill) increases or decreases the scope for the operations of NGOs both local and foreign in the country. Some of the findings include: a) Government intends, through the Bill which has since been enacted into law, to exercise control over the existence and activities of NGOs. b) Only two per cent of NGOs viewed to be sympathetic to government were consulted on the Bill. c) At the same time, government lacks the minimum capacity to enforce the new or previous law on NGOs. d) Nearly hundred per cent of the Zambian NGOs depend on foreign sources of funding to operate. e) The Bill seeks to force NGOs to disclose their sources of funding to government and submit their programme of action to government for prior approval. It also defines specific areas that NGOs may engage in.
Contact person: Prof M Hansungule.
This is a survey and analytical examination of the principles of sentencing in international criminal justice with particular reference to the International Criminal Court (ICC). Some of the key findings include recent interest by African states in post-conflict situations resorting to traditional justice systems including sentencing as an alternative to the Western justice systems or classical prison sentences. At least Rwanda through GACACA traditional justice is applying modified traditional justice in respect of genocide suspects and Uganda has just announced its intention to apply Acholi justice system. Putland, former northern Somalia, and Somaliland are also using traditional justice including sentencing. On the other hand, classical international criminal justice at ICC and ad hoc tribunals are still using ordinary sentencing mechanisms. An important finding in this respect is that though victims are generally satisfied with a conviction of an accused under classical justice, most do not understand why the sentence under UN backed tribunals and the ICC does not include the death penalty. There was little effort to make people understand why the UN-backed justice does not entertain the death penalty. At the same time, ordinary people unlike the regimes are not into accepting easily the non-sanction traditional sentencing or methods of punishment even under the guise of reconciliation.
Contact person: Prof M Hansungule.
A doctoral student, Lirette Louw, in the Centre fro Human Rights, in the Faculty of Law, and her supervisor, Professor Frans Viljoen, undertook a research project entitled: State compliance with the recommendations of the African Commission on Human and People’s Rights (1993 – 2004). The project focused on the direct effect of the most recent of the three regional human rights systems, which was established when the African Charter on Human and Peoples’ Rights entered into force in 1986. The African Charter called for the establishment of compliance with the Charter’s norms. As the drafters considered that Africa was not ready for a supranational judicial institution at the time, the African Commission was established as a quasi-judicial supervisory body. Under the African Charter, the findings of the African Commission are not legally binding. From 1987 until mid 2003, the African Commission completed 122 communications. Of these, 63 were declared inadmissible, another five were settled amicably and eight were withdrawn. The Commission found violations by state parties in 44 of the remaining 46 admissible communications. Commentators on the African regional human rights system have often cited its absence of “teeth” when it comes to the enforcement mechanisms provided for in the African Charter. It is against this background that a study was undertaken to determine the status of state compliance with the recommendations of the African Commission. This research shows that the attempt to chart compliance scientifically is fraught with methodological difficulties. The most important of these is the Commission’s failure to enunciate clear and specific remedies, leaving an unreliable yardstick for measuring compliance. The researchers’ analysis of non-compliance suggests that the most important factors predictive of compliance are political, rather than legal. The only factor relating to the treaty body itself showing a link to improved compliance is its follow-up activities. In a significant development subsequent to the completion of this project, the Commission in 2006 adopted a resolution in which it unequivocally called on state parties to the African Charter to “respect without delay the recommendations of the Commission,” and to report on compliance within ninety days of being notified of decisions against them. Findings also place in doubt views that the African Court will bring about an improvement in state compliance, as the mere fact that the Court will provide legally binding and specific remedies and better formulated judgments will not in itself guarantee improved state compliance. The advent of the Court may coincide with a gradual hardening of human rights commitments and lead to improved human rights adherence, but it would then be on the strength of a stronger domestic and regional political commitment, increased publicity, and greater involvement of civil society. When the AU Constitutive Act was adopted in 2000, the African Union replaced the OAU as the regional political body. The new institution addressed some of the weaknesses that had marked the OAU. The AU Constitutive Act includes the protection of human and peoples’ rights among its objectives and founding principles. It seems that some of the problems associated with the weak regional political platform of the OAU have been addressed by its transformation into the AU. However, some instances of non-compliance have been registered since 2000, after the Union was established. Whether the AU will develop a practice of taking action on the basis of the theoretical possibilities mentioned above will have to be seen.
Contact person: Prof FJ Viljoen.
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