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The major objective of this article is to examine the extent to which the human rights jurisprudence of the Nigerian appellate courts has been sensitive and / or receptive to the socio-economic and political claims of Nigeria's large population of the poor and marginalized. In particular, the article considers: the extent to which Nigerian human rights jurisprudence has either facilitated or hindered the efforts of the poor to ameliorate their own poverty; the kinds of conceptual apparatuses and analyses utilized by the Nigerian courts in examining the issues brought before it that concerned the specific conditions of the poor; and the key biases that are embedded in and shape Nigeria's jurisprudential orientation. The line of cases analysed in the article indicate that the Nigerian appellate courts, as elsewhere, possess great capacity, for good or ill, to impact public policy in the field of poverty reduction.
The roles that Third World Approaches to International Law (TWAIL) scholars could play in political and/or socio-economic struggles beyond the academy, and the relationships of these scholars to politicians, diplomats activists, civil servants, peasant movements, civil society, and other nonacademic actors are issues as important to TWAIL as they are understudied and underenacted. The three essays in this TWAIL Symposium take up this theme of praxis.
This chapter is grounded in a study of three of the national human rights institutions (NHRIs) that operate in “Anglophone Africa.” In the main, it focuses on two objectives. The first goal is to understand the performance of the relevant NHRIs in terms of the extent of their legalism; facilitation of their own deployment and utilization by civil society agents; and attentiveness to the “voices of suffering” in whose interest they ought to function. As explained in this chapter, these three factors together constitute a more holistic way of understanding NHRI effectiveness, beyond the usual “measures.” The second main objective of the chapter is to probe for more general conceptual insights into the behavior, performance, and promise of these institutions and elaborate upon what these findings tell (or do not tell) us about NHRIs in Anglophone Africa.
Methodologically, it is important to note that the particular Anglophone African NHRIs studied here are the Nigerian, South African, and Ugandan bodies. Each NHRI is chosen from one of the three geographical regions of the African continent where Anglophone countries exist – West Africa, Southern Africa, and East Africa (in that order). There are no North or Central African Anglophone countries. The temporal scope of the study is the decade between 1999 and 2009. The evidence on which the chapter is based was collected through a desk study, consisting of both a review of secondary sources and transcribed telephone interviews with NHRI officials and NGO activists in the relevant countries. The interviews focused on these actors because they are the best placed to comment on work of the NHRIs in their countries, and comparing the evidence supplied by one with the others ensured that a more accurate picture of the relevant NHRI’s performance was obtained. It is recognized, however, that there are limits to what a study of only three NHRIs can tell us about the thirteen or so NHRIs that exist in Anglophone Africa. Yet, as the three NHRIs studied here have been purposively selected from each of the three regions of Anglophone Africa, they suffice for the purposes of the current chapter.
Between 1999 and 2007, a popular Labour-led movement led a pro-poor struggle to resist the fuel price hike policy of the Nigerian government. Waged in the context of the poverty in which nearly 70 per cent of Nigerians lived, the operation of powerful incentives to raise fuel prices, and Labour's extraordinary socio-political leverage, these struggles triggered much government frustration. One of the strategies adopted by the government to legitimize its attempt to repress the movement was to resort to the courts. This article analyses, from a socio-legal perspective, the key cases relating to the validity of the government's attempts to repress the struggles. The article concludes that, although both pro- and anti-movement trends can be observed in the jurisprudence, the anti-movement tendency having so far prevailed in terms of formal legal precedent, the pro-movement (ie pro-poor) decisions have, as a result of their massive popular legitimacy, actually functioned as the “living law.”
During the Fall of 2007, as part of a much broader York-Nigerian Universities linkage project that he had been working on for some time, Professor Okafor taught an internationalized version of a pre-existing existing course entitled “Human Rights in Africa.” At the same time, Professor Dakas of the Faculty of Law, University of Jos, Nigeria (assisted by Mr. J.D. Gamaliel) taught a similarly modified version of an existing course at their own institution. Professor Dakas, a former Hauser Global Scholar at New York University and most recently the attorney-general of the Plateau State of Nigeria) was the lead faculty at that partner law school in Nigeria.
During 1999–2007, a labour-led but broad-based socio-economic rights movement, which focused on a pro-poor (and therefore highly popular) anti-fuel price hike message, persuaded and/or pressured Nigeria's federal legislature, the National Assembly, to: mediate between it and the Executive Branch of Government; take it seriously enough to lobby it repeatedly; re-orient its legislative processes; explicitly oppose virtually all of the Executive Branch's fuel price hikes; and reject key anti-labour provisions in a government bill. Yet the movement did not always succeed in its efforts to influence the National Assembly. This article maps, discusses, contextualises and analyses these generally remarkable developments. It also argues that while many factors combined to facilitate or militate against the movement's impact on legislative reasoning, process and action during the relevant period, this movement's ‘mass social movement’ character was the pivotal factor that afforded it the necessary leverage to exert considerable, if limited, influence on the National Assembly.
For a remarkably long period of time, the world over, Marxist ideas ‘held a special fascination for movements seeking to transform economic, political, and social conditions in favour of the “have-nots”’. But the not-too-distant fall of what was widely regarded as ‘actually existing socialism’ has led all too many commentators to declare (with varying degrees of thoughtfulness or the lack thereof) that the Marxian thought that seemed to inspire and animate that system had ‘thus been rendered nugatory’. Yet, there is increasing recognition among an epistemic community of those knowledgeable in the intricacies of Marxian and other socio-political thought that these sorts of announcements of the complete and total negation of the broadly Marxian theory of social, political and economic life are far too non-nuanced and totalising as to be accurate. Some, like Brad Roth and Martti Koskenniemi, have even gone as far as arguing (in separate papers) that Marx can even be retrieved to further the ends of either the human rights movement or of international law more generally.
It is in this broad tradition of critical reflection on the continued (however limited) influence of Marxian thought on social scientific and international legal scholarship that this chapter is conceived.
One of the major tasks accomplished in this chapter is the mapping and analysis of the extent and significance of the more modest impact that the African system has had within some other African states (that is, other than Nigeria and South Africa). This discussion will form the basis for the argument that the available evidence points tentatively to the conclusion that the African system (like other IHIs) can under certain conditions contribute to the production of valuable correspondence, facilitated by activist forces, between some of its norms and the behavior of key domestic governmental institutions within some African states (what I have referred to earlier in this book as the “ACHPR phenomenon”). This discussion will of necessity be shorter than our examination, in chapter 4, of the African system's influence within Nigeria. This is explained by the fact that the bulk of the available evidence regarding the African system's domestic impact tends to lie outside these other countries.
The other major task that will be accomplished in this chapter is to attempt to specify, as broadly and accurately as possible, the conditions for the optimization of the African system's impact within African states. This analytical exercise will be grounded in the evidence adduced in chapter 4 (in respect of in Nigeria), chapter 5 (regarding South Africa), and in the present chapter (in respect of a sample of other African countries).
Aside from their weak attempts at commanding obedience and their very modest successes at cajoling compliance, are there other significant ways in which international human rights institutions (IHIs), such as the African human rights system, can matter to those who wage domestic social struggles? Aside from doing something for the local activist forces that wage such struggles, can such activist forces do meaningful things with the African system in their engagement with the domestic institutions of their own countries? Can these activist forces, as local actors and agents, more effectively deploy and harness within states the norms, processes, and creative spaces that have been made available to them partly as a result of the character and behaviour of the African system? Can they by so doing facilitate a creative form and process of “trans-judicial communication” between the African system and such other IHIs (on the one hand) and the key domestic institutions (on the other hand)? In short, what precisely, if at all, is the extent of the domestic impact of the African system; how exactly has such domestic impact been achieved; and what does the manner in which it has been achieved tell us about the ways in which we imagine and evaluate IHIs like the African system?
A number of concepts are central to the questions raised above: the African human rights system, activist forces, IHIs, and trans-judicial communication. These require definition.
What I want to do in this chapter is to show that the African system has been imagined in very similar ways as other IHIs. First, I want to show that in their attempt to understand this system, most commentators have viewed it (or one or the other of its component entities) as (a) particularly weak and ineffectual, and (b) as dysfunctional in the sense that it has not served as a panacea to Africa's human rights problems. Secondly, I want to show also that most commentators have viewed the textual/organizational reform of the African system not merely as important, but as the key, to the success of the system. And finally, I want to show that the relevant body of scholarship has, for the most part, either been overly “enforcement-centred” or excessively focused on the “voluntary compliance” analytical framework. As has been noted already, this assessment of the conventional approaches does not imply that the state compliance optic is wrong in itself. Rather, it is intended to underscore its conceptual incompleteness and the necessity for its enlargement and expansion. What will be suggested is that there is a need to reach beyond – while retaining – the state compliance-focused optic. Having already considered in chapter 2, the various approaches to the study of IHIs more generally, and having concluded that the constructivist approach best serves our purposes in this book, that whole discussion will not be repeated here.
The broad conceptual objectives of this book do bear restatement here. The first one is to show that the African system for the promotion and protection of human and peoples' rights has manifested its most significant domestic promise when creatively deployed by activist forces in the domestic social struggles that these agents have waged within certain African states (particularly in Nigeria and South Africa). When the African system is so deployed, it can sometimes help shape or reshape the logics of appropriateness, self-understandings, and conceptions of interest held within key domestic institutions of target states, thereby contributing to the generation of valuable forms of correspondence between the norms of the African system and the behavior of the relevant domestic institutions. The other key objective of the book is to demonstrate the need for a modest enlargement of the conventional optics through which the effectiveness of the African system (and of similar IHIs) has hitherto been evaluated. There is a need, it is urged, to reach beyond, without abandoning, the search for state compliance as the measure of the utility of the African system and other such bodies.
The key question here therefore is: what, if anything, does the analysis of the African system's modest domestic impact conducted in earlier chapters tell us about how best to evaluate and imagine IHIs? In the light of that analysis, what the present chapter does is to make a case for movement toward the extension of the measure of IHI effectiveness.
In line with the conceptual and methodological approach that was adopted in the last chapter, the same kinds of issues that were raised in that context with regard to the impact of the African system within Nigeria also animate the discussion here. As the nature of those approaches and related issues have been discussed extensively in chapter 4 it will not be repeated here in any detail. What this chapter focuses on is the systematic examination and discussion of the available evidence relating to the impact of the African system within South Africa. Has this system impacted judicial reasoning and action, executive deliberations and action, legislative debate and action, and the work of civil society actors (CSAs) in South Africa? If so, to what extent has its impact been felt within these institutions and groups? What factors have facilitated or impeded this impact? Do the various processes via which this impact has been produced (what I have referred to elsewhere in this book as “correspondence”) differ from the “state compliance” which is traditionally focused upon in most of the literature? If so, how do they differ? What was the role of activist forces (such as some CSAs, judges, and MPs) in these processes in South Africa? What does the character of these other processes tell us about the adequacy or otherwise of the dominant state compliance measure and the way in which we evaluate and imagine international human rights institutions (IHIs)?
[I]t would be idle to claim that the Commission [and the system as a whole] has acquired or will ever command the spontaneity of compliance enjoyed by the Oracle of Delphi. However, any temptation to dismiss it as a worthless institution today must be regarded as premature, ill-informed, or both.
Imaginative strategies for the activation of the Commission [and the system as a whole] demonstrate that the success of the mechanism [and the system] depends as much on activist forces and activists as it does on the members of the body.
As Steiner and Alston have noted, many scholars have for long been perplexed by the difficulties associated with attempts to demonstrate the influence that international human rights institutions (IHIs), such as the African system for the promotion and protection of human and peoples' rights, might have exerted within particular domestic contexts. How, they have asked, does one go about the evaluation of the impact that an IHI such as the African system has exerted within a particular country? What would constitute “reasonably persuasive evidence” that an IHI, such as the African system, has influenced “the course of events in a given country,” or the behaviour of any or all of its domestic institutions?
The conventional approach to providing the sort of “answers” that Steiner and Alston want has been to seek, almost exclusively, material evidence of state compliance with the norms/decisions of such institutions.
In the interest of clarity, the broad conceptual objectives of this book will be restated here. The first such objective was to show that the African system for the promotion and protection of human and peoples' rights has manifested its most significant domestic promise when creatively deployed by local activist forces in the domestic social struggles that these agents have waged within certain African states (particularly in Nigeria and South Africa). When the African system has been so deployed, it has, under certain broadly specifiable conditions, helped shape the logics of appropriateness and/or conceptions of interest held within key domestic institutions of target states, thereby contributing to the generation of valuable forms of correspondence between the norms of the African system and the thought and action of the relevant domestic institutions. As central an objective of the book is to demonstrate the need for a modest expansion of the conventional optics through which the value/effectiveness of the African system and similar international human rights institutions have hitherto been evaluated. There is a need, it is urged, to reach beyond, without abandoning, the search for and measurement of state compliance as the barometer of the rise or fall in the utility of the African system and other IHIs. Analysis of the African system's more subtle domestic impact therefore formed the bulk of the discussion in the book.