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A Critical Review of the Jurisprudence of the African Commission on the Right to Development

Published online by Cambridge University Press:  28 June 2013

Serges Alain Djoyou Kamga  and
Charles Manga Fombad
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Abstract

This article critically examines the jurisprudence of the African Commission on Human and Peoples' Rights (the African Commission) on the right to development (RTD). Notwithstanding the controversy over the RTD, it is binding in the African human rights system and has been the focus of a number of cases that have come before the African Commission. After briefly examining the historical and theoretical framework of the RTD, the article focuses on the meaning of the right and its duty bearers at the national and international levels. After analysing several cases decided by the African Commission, the article concludes that the RTD is an important composite right that can provide scope, at both an individual and a collective level, for marginalized groups in society to assert their human rights.

Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 2 , October 2013 , pp. 196 - 214
Copyright
Copyright © School of Oriental and African Studies 2013 

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References

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58 In 1998, res E/CN.4/RES/1998/72 was adopted at the CHR without a vote, whereas, at the General Assembly, 125 votes in favour, one vote against and 42 abstentions were recorded for res A/RES/53/155. In 1999, res E/CN.4/RES/1999/79 was adopted at the CHR without a vote; at the General Assembly, 119 votes for, ten against and 38 abstentions were recorded for res A/RES/54/175. In 2000, res E/CN.4/RES/2000/5 was adopted without a vote at the CHR; res A/RES/55/108 was also adopted without a vote at the General Assembly. At the CHR in 2001, the EU (except the UK) was in favour of the RTD; three abstentions (UK, Canada and the Republic of Korea) were recorded, and Japan and the USA voted against; see CHR res 9, UN ESCOR, 57th sess, at 68: UN doc E/CN.4/2001/167 (2001). Also in 2001, at the 56th session of the General Assembly (September – December), 123 votes in favour and four against (Denmark, Israel, Japan and the USA) were recorded, with 44 abstentions; see GA res 150, UN GAOR, 56th sess, supp no 49, at 341: UN doc A/2890 (2001). At its 57th session in December 2002, where the General Assembly adopted the conclusions of the open-ended working group on the RTD, 133 votes were recorded in favour, four votes against (United States, Australia, the Marshall Islands and Palau), and 47 abstentions; see GA res 556, UN GAOR, 57th sess, supp no 49: UN doc A/57/49 (2002).

59 UNDRTD, art 8.

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62 UNDRTD, para 2.

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64 Adopted by the Organization of African Unity in Nairobi, Kenya on 27 June 1981 and entered into force on 21 December 1986.

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66 Baxi Human Rights in Post Human World, above at note 49 at 124.

67 For more insights on the communications discussed in this section, see Kamga “Human rights in Africa”, above at note 6 at 217–37.

68 Comm no 260/2002, AHRLR (2004) 43.

69 African Charter, art 7(1)(a).

70 Id, art 14.

71 Id, art 21.

72 Art 50 of the African Charter reads: “The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”

73 Above at note 3.

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77 DRC, para 87.

78 African Charter, art 22(2).

79 DRC, para 95.

80 Above at note 2.

81 African Charter, art 2.

82 Id, art 4.

83 Id, art 14.

84 Id, art 16.

85 Id, art 18.

86 Id, art 21.

87 Id, art 24.

88 SERAC, above at note 2, para 64.

89 Above at note 4.

90 Id, para 205.

91 Id, para 206.

92 Ibid.

93 Held in Banjul, The Gambia from 11–25 November 2009.

94 Above at note 5. This section relies on Kamga “The right to development in the African human rights system”, above at note 28 at 386–91.

95 Endorois, above at note 5, para 1.

96 Id, para 22.

97 African Charter, art 8.

98 Id, art 14.

99 Id, art 17.

100 Id, art 21.

101 It is important to note the rights to participation and self-determination are core elements of the RTD as defined by art 1 of the UNDRTD.

102 Endorois, above at note 5, para 125.

103 Id, para 133. See also Mary and Carrie Dann v USA case 11.140, report no 75/02, InterAmerican CHR, doc 5 rev 1 860 (2002), para 136.

104 Id, para 270.

105 UN GA res A/RES/41/128, December 1986. See also paras 21 and 22 of the Rio Declaration (adopted at the Rio Conference on Environment and Development in Rio de Janeiro, Brazil, 3–4 June 1992) which clearly underline the right of indigenous people to participate in development; the 1990 African Charter for Popular Participation in Development and Transformation (adopted at the International Conference on Popular Participation in Development and Transformation, Arusha, Tanzania, 12–16 February 1990): UN doc E/ECA/CM.16/11,1990; the African Charter, art 13; arts 11 and 12 (for example) of the Declaration on the Rights of Indigenous People: UN res GA/10612 of 13 September 2007.

106 ICCPR, art 27.

107 UNDRTD, art 2(1).

108 Id, art 2(2).

109 Id, art 2(3).

110 Endorois, above at note 5, para 281.

111 UNDRTD, art 2(3).

112 Endorois, para 129.

113 African Charter, art 20.

114 Id, art 21.

115 Endorois, para 128.

116 Id, para 126.

117 African Charter, art 20.

118 Art 1(1) of both the ICESCR and ICCPR; the Vienna Declaration part 1, para 2. Also NIEO Declaration, art 4; arts 26(k) and 14(e) of the Report of the World Summit for Social Development, Copenhagen, 6–12 March 1995: UN doc A/CONF.166/9 of 19 April 1995; art 2 of the Charter of Economic Rights and Duties of States, 29th session of the UN General Assembly: UN doc, A/RES/29/328; the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, art 2(2); and the September 2007 UN Declaration on the Rights of Indigenous Peoples, art 3.

119 Endorois, above at note 5, para 278.

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123 17 June 2005, InterAmerican CHR.

124 Id, para 164.

125 African Charter, art 61.

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127 Ibid.

128 SERAC, above at note 2, para 64.

129 Id, para 60.

130 OC Okafor “‘Righting’ the right to development: A socio-legal analysis of article 22 of the African Charter of Human and Peoples' Rights” in Marks (ed) Implementing the Right to Development, above at note 14, 52 at 55.

131 Ibid.

132 Olowu An Integrative Rights-Based Approach, above at note 126 at 155.

133 See Katangese Peoples' Congress v Zaire (2000), AHLR 72 (ACHPR 1995).

134 Olowu An Integrative Rights-Based Approach, above at note 126.

135 Ibid.

136 Endorois, above at note 5, paras 156–57.

137 Id, para 157.