Globalisation, Human Rights and the Judiciary in Africa: A Comprehensive Identification, Location and Comparative Law Analysis of the Judgments relating to Human Rights in Sixteen African States
Funded by Irish Research Council for Humanities and Social Sciences (IRCHSS)
The direct goals of the research are fourfold. (i) to identify all significant judgments in the sixteen African courts with common law and Roman-Dutch legal systems which address human rights issues; (ii) to categorise these judgments under ten central human rights themes; (iii) to analyse the significance of these decisions in the development of a human rights culture in Africa and their resolution of conflicts between universalist human rights norms and indigenous cultural values; (iv) to place copies of the judgments, supported by comparative law analysis, on a dedicated website on the Internet and to publish books containing key judgments and an analysis of their significance in the context of international human rights under the ten human rights themes.
The broader goal of the research is to enable judges, legal practitioners, human rights NGOs and the wider community throughout Africa have free access to the corpus of caselaw which judges in these African states have produced in relation to human rights. This access, supported by detailed comparative law analysis, will provide human rights jurisprudence not otherwise accessible at a single location. More importantly, the research is designed to yield access to important judgments on human rights which previously were completely hidden, never having been published in official law reports.
Judges in many African states face formidable obstacles in terms of lack of resources, poor administrative support, hostile and non-compliant governments and, in some instances, strong governmental opposition to human rights. By no means every judge seeks to confront the legislature and government by asserting and protecting human rights, under the national constitution or international human rights instruments; but a significant number of judges take an independent stance.
Accessing judgments in several African states (save South Africa and Nigeria) can be a large problem. Law reporting is fitful and tends to be in serious arrears. Important judgments on human rights are never reported (sometimes precisely because their importance inhibits publication on account of their political sensitivity). Court registries are frequently less than efficient and judgments can be hard to find.
The Law School of Trinity College Dublin has a unique opportunity to locate all the significant decisions on human rights in these African states. It has established strong links with the Chief Justices and senior judiciary of nearly all of these countries, having organised an annual Workshop on constitutionalism over the past eleven years, on each occasion attended by between fourteen and eighteen members of the judiciary of these states. The Law School already has in its possession over four hundred African decisions relating to human rights.
The judgments will be analysed under ten human rights themes: Human dignity, the right to life, freedom from torture and inhuman and degrading treatment and punishment, gender equality, other equality issues, including discrimination on ethnic or religious grounds, freedom of expression, economic, social, cultural and environmental rights, liberty, the rights and welfare of children, and fair trial rights. Their significance will be assessed on a comparative law basis.
This process of analysis will place the judgments in a wider framework of international human rights scholarship. The effect of introducing a range of previously unknown material, comprehensively analysed, is likely to stimulate further long-term research into the protection of human rights in Africa.
There is no other research of this kind being conducted elsewhere. The research project, when completed, will constitute a unique resource in the advancement of human rights protection.
The past six decades have witnessed the establishment of the United Nations and the formulation of the great international human rights instruments, at global and regional levels. There has been a high level of ratification of these instruments by states around the world; the level of compliance has, however, been far less impressive. The role of the judiciary in seeking to protect human rights within the domestic legal order of their state is a crucial component of the vindication of international human rights norms. Judges cannot control the executive and legislative organs of government but an activist judiciary can achieve much in protecting the human rights of those living in their state, citizens and non-citizens alike.
Africa presents particular challenges to the enforcement of international human rights norms. They include the issue of cultural relativism, the lack of economic resources in many African countries, the non-democratic structure of government in some states and the threat of ethnic conflict.
The judicial protection of human rights confronts further distinctive challenges. There is no tradition of judicial independence; judges during the colonial period served the purposes of the colonial power and were not an independent check on legislative or executive action. The administration of justice has generally been poorly funded, leading to inefficiency and some corruption. Human rights education among lawyers is not extensive. Legal aid is limited, resulting in ineffective legal representation of accused persons in criminal proceedings. Governments are reluctant to comply with court orders and, in some instances, have intimidated the judiciary. Where non-democratic governments have attained power, they have sought to oust questions of the legitimacy of their regimes from the scrutiny of courts.
In spite of all these difficulties there exists an impressive body of judgments delivered by African national courts vindicating human rights, through an activist interpretation of constitutional provisions or by more direct reference to international human rights norms. Not all of these judgments have been successful in the sense of forcing governments or legislatures to desist from violations of human rights but they have contributed to the maintenance of a human rights culture among the African judiciary.
A major problem confronting judges and legal practitioners in Africa is the inaccessibility of judgments. The law reporting system in many African countries is in a state of serious delay, in some instances stretching over decades. The official law reports, when they do emerge, tend to be far from comprehensive. Some of the most challenging and important decisions, seeking to advance human rights, are not reported. There have been Internet initiatives, which have generally proved less than fully effective. The most recent, the Southern African Legal Information Institute (SAFLII, www.saflii.org) looks very promising but it is as yet far from comprehensive and does not seem to provide any analysis of the data.
The aim of the project is an ambitious one but which is capable of achievement. It is to obtain copies of all significant judgments of the courts in the sixteen African States with common law and Roman-Dutch legal systems which address human rights issues, whether from the standpoint of national constitutions or of international human rights norms. Having obtained copies of the judgments, the aim is twofold: to render the judgments internationally accessible, without charge, on the Internet, supported by a comparative law analysis, and to produce casebooks on ten human rights themes containing the leading African judicial decisions, again supported by a comparative law analysis.
The objectives of the project are to give it practical implementation by a fourfold process:
- to carry out comprehensive research to identify the judgments in question;
- to locate these judgments, in thematic and national legal reports, in websites and in the court registries of the African states;
- to analyse, from a comparative law perspective, the significance of each judgment in relation to the protection of international human rights norms;
- to publish the judgments, duly structured thematically, on the Internet and to publish casebooks on ten human rights themes containing the leading African judicial decisions, in both instances supported by comparative law commentary.
Central Research Questions
The central research questions to be addressed in the project are as follows:
- To what extent have courts in the sixteen African states been called on to address international human rights norms in their decisions?
- In cases where courts have applied international human rights norms, has this been based on (i) the application of a dualist theory of international law; (ii) the application of a monist theory of international law; (iii) resort to some other basis of incorporation?
- Has there been a greater willingness in courts of first instance or in appellate courts to apply international human rights norms?
- How have the African courts attempted to resolve the potential conflict between universalist principles (such as equality and dignity) and cultural relativism?
- To what extent have African courts interpreted their national constitutions in harmony with international human rights norms?
- How have African courts sought to deal with the question of compliance by governments with their judgments relating to human rights?
- Have African courts ought to enforce economic and social rights under constitutional provisions or under international human rights instruments?
The theoretical framework of the project to a large degree determines the investigative and analytic methodology. It is necessary to identify the scope of the concepts of international human rights norms and of human rights protection at a constitutional level. It is easy to identify the central human rights norms and constitutionally protected human rights norms; the difficulty lies in defining the outer limits.
The approach adopted in the project is a pragmatic one. It involves the identification of ten human rights themes which have a basis in international human rights instruments and in many (though by no means all) national constitutions. These themes are as follows:
- Human dignity
- The right to life
- Freedom from torture and inhuman and degrading treatment and punishment
- Gender equality
- Other equality issues, including discrimination on ethnic or religious grounds
- Freedom of expression
- Economic, social, cultural and environmental rights
- The rights and welfare of children
- Fair trial rights.
This list is clearly non-exhaustive; it seeks, however, to capture those human rights themes which raise issues of particular concern in the context of Africa. The project will address the role of the judiciary in Africa in protecting human rights and the extent to which this has been successful.
Having identified the international human rights themes falling within the scope of the research, it is necessary to prescribe an investigative and analytic methodology.
The investigative methodology involves the identification, location and acquisition of copies of the judicial decisions of courts in the following African states:
- Nigeria (a common law state)
- Ghana (a common law state)
- The Gambia (a common law state)
- Sierra Leone (a common law state)
- Cameroon (a civil law state with some common law influences)
- Uganda (a common law state)
- Kenya (a common law state)
- Tanzania (a common law state)
- Malawi (a common law state)
- Zambia (a common law state)
- Zimbabwe (a Roman – Dutch law state)
- Botswana (a Roman – Dutch law state)
- Swaziland (a Roman – Dutch law state)
- Lesotho (a Roman – Dutch law state)
- Namibia (a Roman – Dutch law state)
- South Africa (a Roman – Dutch law state)
The processes of identification and location of judicial decisions are in part overlapping. Many decisions are contained in law reports, some published under official aegis, such as a Law Reporting Council, others published for commercial gain. It is a relatively easy task to identify these reports, a somewhat less easy task to locate all of them as no law library outside Africa has comprehensive holdings of law reports and, within Africa, only a couple of libraries (in South Africa) have holdings that approach comprehensiveness. Having located these law reports, the identification of decisions, published in these reports, involving the judicial application of human rights norms is possible. It will also be possible to make photocopies of these decisions.
The second category of judicial decisions consists of those available on the Internet, either freely accessible or accessible commercially by enterprises such as Juta Law Publishers. Locating, identifying and acquiring copies of these decisions is straightforward.
The third category of judicial decisions consists of unreported judgments to which reference is made in other, reported or unreported, decisions or in books, articles or papers on human rights and constitutional issues in Africa. The research involved here is painstaking and open-ended.
The final category of judicial decisions consists of unreported judgments, not mentioned in other decisions or in the academic literature, which are retained in court registries of the several states. This category is in one respect the most important as discovery and disclosure to a wide readership of these decisions contributes most innovatively to the spread of understanding of the extent to which the African judiciary protects human rights. It is, however, the most challenging as the condition of many court registries is poor; comprehensive records of judgments have not been retained; judgments have gone missing or have disintegrated.
Having identified, located and obtained copies of all relevant African human rights judgments, they are subjected to an analytic methodology. This consists first of categorising the decisions under the ten thematic categories already identified. (Many decisions will contain elements relevant to more than one of these categories.) Having thus categorised them, each decision is analysed carefully to assess a range of legally significant factors. These include:
- What approach the judgment adopts to the application of international human rights norms: dualist, monist or other.
- What use the judgment makes of comparative law.
- The extent to which the judgment is based on constitutional principles.
- The use of legal precedent in the judgment.
- The extent to which judicial activism is involved.
- The logical consistency of arguments adopted in the judgment.
- The nature of any remedy prescribed by the judgment.
With many judgments, this analysis, far from revealing high levels of judicial activism, will demonstrate a significant element of judicial conservatism, formalism and caution. Bold judicial assertions of human rights protection are not the norm. Yet, identifying the decisions in which judicial activism and independence have been displayed is a crucial element in the project.
The research plan consists of eight stages, as follows:
- Classification and analysis of judgments already in the possession of the Law School of Trinity College Dublin
The Law School of Trinity College Dublin already has in its possession copies of over four hundred African judgments relating to human rights. Many of these have been collected in the context of the Master of Laws degree subject of African Human Rights Law, which has been part of the LL.M. programme at Trinity for the past six years. Others have been contributed by the African Chief Justices and judges who have attended the Annual Workshop on Constitutionalism for African Chief Justices and Senior Judiciary, held at Trinity for the past eleven years.
Classification of these judgments into the ten thematic categories will be followed by analysis of their content to assess their significance from the standpoint of the extent of their endorsement of international human rights norms.
- Location and downloading of copies of judgments available on the Internet
The process of location and downloading of judgments available on the Internet is straightforward and can be accomplished within a short time. Several of these judgments are already in the possession of the Law School.
- Location of law reports containing relevant African judgments, identification of judgments addressing human rights issues and acquiring copies of the judgments
The first part of the process of locating law reports containing relevant African judgments is straightforward. A small number of relevant law reports is available in Dublin: the Law Reports of the Commonwealth, the former East African Law Reports and Butterworths Human Rights Cases. Most of the judgments which these reports contain are already in the possession of the Law School.
The second part of the process is also straightforward but more demanding. It is to go to the Libraries of the Institute for Advanced Legal Studies and of the School of Oriental and African Studies in London, as well as the Bodleian Library at Oxford, which contain impressive holdings of African law reports as well as some unreported judgments. The task of locating and copying the relevant judgments in these reports is a painstaking one but does not present methodological problems.
- Location of remaining law reports in the libraries of African states and making copies of relevant judgments relating to human rights issues
This is a challenging part of the methodology. It involves the prior identification of the law reports to which access was not possible in the Irish and British libraries. It will not be necessary for this purpose to visit libraries in all states falling within the scope of the project: the libraries of a few South African universities contain comprehensive holdings of a number of African states. It will, however, be necessary to visit the libraries of certain states (notably Nigeria) to supplement this process.
- Review of relevant literature to identify unreported judgments relating to human rights
This process runs in parallel with steps 1 to 4 as, in substantial part, it is independent of the process of acquiring judgments from law reports and the Internet. It is a highly challenging and open-ended one. It involves a comprehensive review of the literature in which reference to unreported African judgments on human rights may possibly occur. This literature is academic – books, articles and papers – as well as from official sources (Government ministries and Law Reform Commissions) and NGOs.
This step in the process includes visiting the libraries in Britain and Africa which have already been mentioned.
Steps 3 and 5 will be carried out at the same time.
- Acquisition of copies of unreported judgments identified in the course of step 5
The sixth step is the acquisition of copies of the unreported judgments identified in the course of the review of the relevant literature. The execution of this step will be achieved principally by direct contact with the Chief Justice of each state. A request to the Chief Justice for copies of these judgments is likely to yield a good, though not complete, return. The reasons why it will not be fully successful include a number of factors. The interest of some Chief Justices in the project will vary: some will be enthusiastic supporters, others indifferent. The capacity and willingness of court Registrars to identify and copy the judgments will also be variable. Even with the best will, some of the judgments will simply not be accessible. They may have been removed or improperly filed.
In the light of the return from this round of requests, it will be necessary to assess whether it would be useful, in respect of particular states, to pay a visit to their courts and registry in order to encourage greater diligence. It may be anticipated that this will be necessary in some cases.
- Analysis of the human right component of the judgments
This step involves an analysis of the extent to which the judgments contain judicial recognition and protection of human rights norms, in accordance with the criteria set out above. This is a crucial element on the project as it will integrate the material into the wider international framework of human rights scholarship.
- Structured placing of the judgments on the Internet
After the analysis of the judgments has been completed, copies shall be placed, in structured form, on a dedicated website on the Internet. This will contain, in thematic form, all significant decisions from the sixteen African states which have a human rights component. The website will also include thematic analysis which will guide the reader to the differing approaches taken by the courts in these decisions, based on a comparative law analysis.
- Publication of thematic books on African human rights
The final state of the research involves the publication of ten thematic books on African human rights. These will contain significant judgments addressing human rights, supported by substantial academic analysis, designed to place the judicial strategies in the wider international human rights context. The casebooks are somewhat different from what appears on the website. The judgments will be edited and the commentary more extensive.
- Professor William Binchy (Principal Investigator)
- Dr. Catherine Donnelly (Associate Investigator)
- Dr. Liz Heffernan (Associate Investigator)
- Michael Aylmer (Research Associate)
Professor William Binchy (Principal Investigator), Telephone (+353) (0)1 896 2297
Catherine Finnegan Telephone (+353) (0)1 896 2367
School of Law, House 39, New Square, Trinity College, Dublin 2
This project was funded by:
Last modified by Catherine Finnegan