Before the Organization of African Unity (OAU) was reconstituted as the AU [African Union], African States paid lip service to human rights issues. The establishment of the AU through the adoption of the Constitutive Act of the African Union (Constitutive Act) was a watershed moment that African States tried to seize upon to institutionalize and streamline human rights promotion and protection, and send a clear signal that the AU was making a radical departure from the past, characterized by utter disregard for human rights protection. Yet, the African human rights normative framework remained predominantly unchanged because the primary instrument—the African Charter on Human and Peoples’ Rights (African Charter)—relates to an era when human rights were relegated to the periphery of African States’ concerns. Some authors who have written on this subject in the past have stopped short of indicating specific provisions of the African Charter in need of reform. Focusing on, among others, the recent activity reports of the African Commission, this Article tries to indicate the difficulties that are already being experienced since the adoption of the Constitutive Act and the creation of the ACH [African Court of Human and People's Rights]. To these ends, Part I of this Article examines the revolutionary nature of the Constitutive Act, which by its terms introduced a reinvigorated focus on human rights at the political level, giving rise to the establishment of judicial institutions for better protection of human rights, although the practical implementation has largely fallen short. Part II is a critical examination of the primary human rights instrument— the African Charter—insofar as it stands in need of normative and procedural improvements. Part III is a critical evaluation of the constitutive instrument of the ACH and its jurisprudence and a discussion of the proposed ACJH. Part IV examines the need to transform the wider socio-economic and political context in which the human rights protection regime takes place. Part V presents recommendations and conclusions.
Joseph M. Isanga, The Constitutive Act of the African Union, African Courts and the Protection of Human Rights: New Dispensation, 11 Santa Clara J. Int'l L. 267, 302 (2013).