Compliance with Judicial Decisions within the Regional African Human Rights System

The Raoul Wallenberg Institute has released a new research brief exploring the challenges and opportunities facing the Regional African Human Rights System in strengthening implementation of their findings at the national level.

Alejandro Fuentes, Senior Researcher at RWI, and Patricia Iacob, Research Assistant at RWI, have authored the brief. Read the entire brief.

It is a summary of a larger background research paper that they developed for the Regional Symposium on “Closing the Implementation Gap – Strengthening Compliance with Regional Human Rights Decisions”, held on 27-28 September 2016 in Nairobi, Kenya.

The brief is titled “Compliance with (Quasi-)Judicial Decisions within the Regional African Human Rights System. Challenges and Opportunities.”

We caught up with them for a few minutes to ask a few questions about this research.

Why are you interested in this topic?

Effective implementation at national level is essential for having a successful regional human rights system. The added value of having regional or universal human rights standards is precisely the fact that individuals are entitled to enjoy them directly at the local level, as part of their lives. However, even when States commit themselves to incorporate these standards into their own legal systems, the degree of national implementation is far from being optimal. That is why it is important to investigate the reasons behind the poor levels of domestication of international or regional human rights standards. By better understanding the nature of factual and legal barriers that prevent the enjoyment of human rights at the national level, researchers will be able to propose new innovative avenues/approaches that could contribute to overcome those barriers.

How could research on implementation gaps at national levels of regional human rights standards make an impact on peoples’ lives?

When individuals are unable to enjoy regional human rights standards in their daily lives, it means that something is missing in the process of their national implementation. Public authorities at national levels should undertake different administrative and legislative actions aimed at making the enjoyment of fundamental rights effective and accessible to all. When this does not happen, it is because we are facing a lack of political will, or the existence of structural barriers regarding the national legal systems or the institutional practice of those bodies responsible for implementation of international or regional standards. Understanding the nature and entity of these barriers is the first step in order to achieve change. Research that critically analyzes and deconstructs these constraints could support the actions of policy makers, civil society and other stake holders in driving forward this change.

Among/amid all regional human rights systems, this brief focuses specifically on the African System. Is there any reason why we need to focus on this regional system in particular? Do other regional systems face the same implementation challenges?

Unfortunately, all regional systems suffer from low levels of compliance with their human rights jurisprudence. State members find less difficulty in signing and ratifying human rights instruments than in fully implementing them at the national level. The latter requires not only sufficient political will, but also the right institutional and legal frameworks at local levels. The African System has on the decennial experiences developed by both the European and the Inter-American Systems. Its institutional and normative architecture is very advanced and matches the state of the art in this field. However, evidence indicates a lower political will among member States regarding the domestication or national implementation of regional human rights standards.

In order to potentially overcome this situation, this brief proposes that the African Commission and Court develop – within their mandates – further institutional practices that could strengthen the implementation of their findings. For instance, they could develop a self-monitoring mechanism system that would  evaluate yearly the level of compliance with their own judgments and recommendations, until they are fully implemented by the respondent State. This will not only provide clearer understandings of the barriers preventing full implementation, but will also shed light on the political will of member States. Perhaps the old “naming-and-shaming” policy is still one of the most powerful tools to increase respect, promotion and fulfillment of human rights in the world.

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