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The Status of the findings of the African Commission: from moral persuasion to legal obligation

Published online by Cambridge University Press:  26 May 2004

Abstract

Within the African regional human rights system, the African Commission on Human and Peoples' Rights is mandated to promote and protect human and peoples' rights. As part of its protective mandate, the Commission, in terms of an individual complaints procedure, can find that state parties are in violation of the provisions of the African Charter and has recommended remedies in cases where violations have been found. However, concerns have been raised about the non-compliance of state parties with the findings and recommendations issued by the African Commission. Although many possible reasons for this phenomenon could be explored, this contribution investigates one of the factors that may play a role, namely the argument that the findings of the Commission are not legally binding, and that states are consequently not obliged to abide by them. Arguments pertaining to the Commission's lack of competence to decide individual communications and its lack of competence to issue remedies, usually forwarded by those holding the view that the Commission's findings are not legally binding, are addressed here in a bid to clarify the status of the Commission's findings. A conclusion is reached that the findings of the Commission may be viewed as legally binding, firstly on a textual basis (the provisions of the African Charter) and secondly on account of the subsequent “ratification” (or “adoption”) of the findings by the AU Assembly.

Type
Research Article
Copyright
© 2004 School of Oriental and African Studies

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