LCP4807/201/1/2020
Tutorial letter 201/1/2020
International Human Rights Law
LCP4807
Semester 1
Department of Public, Constitutional and International Law
IMPORTANT INFORMATION:
This tutorial letter contains important information
about your module.
LCP4807/201/1/2020
CONTENTS
Page
1 INTRODUCTION ....................................................................................................... 3
2 COMMENTS ON THE COMPULSORY ASSIGNMENTS .......................................... 3
3. THE MAY/JUNE 2020 EXAMINATION .................................................................. 11
5 CONCLUSION ........................................................................................................ 12
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1 INTRODUCTION
Dear Student
This is the second tutorial letter for this semester and it contains feedback on the compulsory
assignments and brief comments on what you may expect in the May/June 2020 examination.
2 COMMENTS ON THE COMPULSORY ASSIGNMENTS
GUIDELINES FOR ASSIGNMENT 01
QUESTION 1
Write an essay in which you discuss the following:
a) The jurisdiction, locus standi and the admissibility requirements of cases
before the African Court on Human and Peoples’ Rights.
b) The potential for individuals and Non-Governmental Organizations to gain
direct access to the African Court on Human and Peoples’ Rights.
NB! Note that both questions (a) and (b) are analytical in nature and will not have a
standard/model answer. The key guidelines will be specific sections/provisions of the Protocol
Establishing the Court; interpretation of such provisions by the African Court in various cases
as well as articles and books by various authors/scholars. The answer will therefore vary
from one student to another depending on the depth of the research conducted. Points were
awarded for the general structure of the essay and Content.
General structure of the essay for both question (a) and (b)
• Assignment cover
• Introduction-first paragraph of the essay
• Body-with headings and sub headings mainly a discussion and analysis of
relevant articles of the convention/s
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• Conclusion of the points raised
• References of sources used through footnotes or in-text references and
Bibliography
• Coherent, well-written, and legally defensible arguments.
• The Instruction indicate that you must do independent research. Those who
did were rewarded for further independent research such as the use of journal
articles, books and cases that addresses or interpret the relevant provisions of
the treaties.
• In case of typed essay, instruction relating to length, style of writing; as
indicated in the instruction
CONTENT
a) The jurisdiction, locus standi and the admissibility requirements of cases before
the African Court on Human and Peoples’ Rights.
JURISCTICTION
• The jurisdiction of the African Court is governed by article 3 of the Protocol
Establishing the Court.
• The Court has two types of jurisdiction contentious and advisory.
• Article 3 states that the Court has jurisdiction over all cases and disputes submitted
to it concerning the interpretation and application of the African Charter on Human and
Peoples' Rights, (the Charter), the Protocol and any other relevant human rights
instrument ratified by the States concerned.
• Advisory jurisdiction is regulated by article 4, which gives the court the power to
provide an opinion on any legal matter relating to the Charter or any other relevant
human rights instruments.
ADMISSIBILITY AND LOCUS STANDI
• Admissibility is about which cases and how cases are admissible and before the
African Court and Locus Standi is about who is allowed to bring cases before the court.
Admissibility is technical in nature and include issues such as listing of the authors of
a complaint, examination of substantive criteria, such as compatibility with the Charter,
forum-choice criteria (is there any other forum which could have best resolved the
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issue), including the exhaustion requirement and the requirement the matter not have
been settled elsewhere.
• Admissibility of cases before the Court is regulated by Article 5 and article 6 of the
Protocol establishing the Court read with article 56 of the African Charter on Human
and Peoples’ Rights.
• In terms of article 5 the following 5 classes of parties have the right to submit cases
before the court:
o The Commission
o The State Party which had lodged a complaint to the Commission
o The State Party against which the complaint has been lodged at the
Commission
o The State Party whose citizen is a victim of human rights violation
o African Intergovernmental Organizations
• Under specified circumstances- which is a subject of Question (b) below the court may
permit relevant NGOs with observer status before the Commission, and individuals to
institute cases directly before it.
• Under Article 6 although the court may request the opinion of the Commission on
admissibility issues, the court itself shall rule on the admissibility of cases taking into
account the provisions of article 56 of the African Charter.
• Article 56 set out how communication should be addressed to make the matter
admissible before the court. The following are made under article 56:
o The authors of a petition be indicated even if they are requesting anonymity
o Communication should be compatible with the provisions of the African Charter
as well as the Protocol Establishing the Court.
o Communications should not be written in disparaging or insulting language.
o Communications must not be “based exclusively on news disseminated
through the mass media
o Communication must be submitted within a reasonable period after the
exhaustion of local remedies
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o Communication must not deal with cases which have been settled by the states
involved in accordance with the principles of the UN Charter, any Charter of
the AU or provision of the African Charter.
b) The potential for individuals and Non-Governmental Organizations to gain direct
access to the African Court on Human and Peoples’ Rights.
You should have discussed the following points:
• The applicable convention is the Protocol to the African Charter on Human and
Peoples’ Rights Establishing an African Court on Human and Peoples’ Rights (Court
Protocol) as well as the African Charter on Human and Peoples’ Rights (African
Charter)
• The question of locus standi before the African Court is governed by Article 5 of the
Protocol establishing the Court- and there are 5 classes of those who has direct access
to the Court-as mentioned above.
• Article 5(3) of the Court Protocol provides that “The Court may entitle relevant Non-
Governmental Organizations (NGOs) with observer status before the Commission,
and individuals to institute cases directly before it, in accordance with article 34 (6) of
this Protocol.
• Article 34 (6) provides that at the time of the ratification of this Protocol or any time
thereafter, the State shall make a declaration accepting the competence of the Court
to receive cases under article 5 (3) of this Protocol.
• Article 34(6) further indicate that the Court shall not receive any petition under article
5 (3) involving a State Party which has not made such a special declaration.
• It is clear that in terms of article 5(3) individuals do not have direct access to the African
Court unless the state in question has deposited a special declaration permitting
individual petitions.
• For NGOs and individuals to have direct access to the Court few things are taken into
consideration and the key questions determining whether individuals or NGOs would
have access to the court are as follows:
o Who is the claimant?
o If the claimant is an NGO does it have the necessary observer status before
the African Commission? If Yes
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o Has their country made an optional declaration under Article 34(6) of the
Protocol enabling direct submissions to the African Court? If so, claimants may
bring their case to the Court
• If the claimant is an individual the only question is asked is whether the country in
question has made a special declaration in terms of Article 34(6).
• Most cases before the African court fail on this procedural issues-since few states have
made this special declaration
• Any other relevant information based on additional research.
GUIDELINES FOR ASSIGNMENT 02
Assignment 02 is an essay type which requires you to be critical and analytical in the form of
a legal opinion. The answer will vary from one student to another depending on the depth of
the research conducted.
You were awarded marks for both the technical and substantive part of the essay.
[Link] CONSIDERATIONS
1. Assignment cover.
2. Structure of the essay which consists of table of contents; introduction; body-with headings
and sub headings clearly numbered.
3. Conclusion with key recommendations as to whether the matter can be entertained by the
CEDAW Committee.
4. Footnotes/Use of references indicating and acknowledging the various sources used.
5. Bibliography
6. Language and grammar: indicating a coherent and well-written essay with legally defensible
arguments.
7. Independent Research: the instruction indicate that you must do independent research.
Therefore, those who did were rewarded for further independent research such as the use of
various conventions and its optional protocols, journal articles, books and cases.
A. SUBSTANTIVE ISSUES
The legal opinion required you to reflect to the following issues:
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a) Introduction
The scenario clearly states that the Republic of Tamari is a democratic country with a
Constitution. Therefore, the constitution reigns supreme in the Republic of Tamari. Further, it
is important to note that the Constitution of Tamari is a replica of the 1996 South African
Constitution (this means that it is/ it would have been justifiable to use the South African
Constitution to build up your legal opinion in preparation for Women Allied Centre (WAC) case
to the UN Committee on the Elimination of Discrimination against Women (CEDAW
Committee)).
b) The Constitution of the Republic of Tamari
It can be argued that the Republic of Tamari is a sovereign and democratic state founded on
amongst other values – human dignity, the achievement of equality and advancement of
human rights and freedoms. Again, the Constitution of the Republic of Tamari is the supreme
law of the Republic, therefore law or conduct inconsistent with it is invalid and the obligations
imposed by it must be fulfilled.
In terms of the Constitution, everyone is equal before the law and has the right to equal
protection and benefit of the law. Further the Constitution makes provision for freedom and
security of the person in that everyone has the right to bodily and psychological integrity which
includes the right –
• to make decisions concerning reproduction
• to security in and control over their body.
c) Tamarian Penal Code of 1936 (Article 120)
Article 120 of the Tamarian Penal Code of 1936 is inconsistent with the provision of the
Tamarian Constitution which strives for advancement of human rights and freedoms, therefore
should have been declared invalid by the Constitutional Court.
d) International & Regional Human Rights Instruments
The Republic of Tamari has ratified UN human instruments including the UDHR, ICCPR and
its Optional Protocols, ICESCR, CEDAW and its Optional Protocols and the African Charter
on Human and Peoples’ Rights.
The ratification of these conventions by the Republic of Tamari means that the country is under
an obligation to respect and to comply with the provisions with these conventions and ensure
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elimination of violence and discrimination against women thereby guarantee equal protection
and benefit of the law. Below are some of the relevant provisions you should have referred to:
i. UDHR
See Articles 3 and 7.
ii. ICCPR
See Articles 3 & 26.
iii. ICESCR
See Article 3.
iv. CEDAW
See Articles 2, 3, 12, 14 and 16
NOTE ! A number of rights of rights apply in this case- the points will be awarded on how you
link the different rights to the specific case. The rights are as broad including-Equality; non-
discrimination; privacy; health and highest attainable standards of health; dignity; life;
autonomy; security of the person; freedom from torture; access to information, etc.
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women
Note that the significance of the OP is to strengthen implementation of the CEDAW
Convention by establishing two additional measures
• – the communications procedure which gives individual women or groups of women
the right to complain to the CEDAW Committee about violations of rights contained in
the Convention.
• the inquiry procedure –which allows the Committee to investigate serious or
systematic violations of women’s rights in a particular country.
The following provisions are relevant:
Article 2
Communications may be submitted by or on behalf of individuals or groups of individuals,
under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights
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set forth in the Convention by that State Party. Where a communication is submitted on behalf
of individuals or groups of individuals, this shall be with their consent unless the author can
justify acting on their behalf without such consent.
Article 3
Communications shall be in writing and shall not be anonymous. No communication shall be
received by the Committee if it concerns a State Party to the Convention that is not a party to
the present Protocol.
Article 4
1. The Committee shall not consider a communication unless it has ascertained that all
available domestic remedies have been exhausted unless the application of such remedies is
unreasonably prolonged or unlikely to bring effective relief.
2. The Committee shall declare a communication inadmissible where:
(a) The same matter has already been examined by the Committee or has been or is being
examined under another procedure of international investigation or settlement;
(b) It is incompatible with the provisions of the Convention;
(c) It is manifestly ill-founded or not sufficiently substantiated;
(d) It is an abuse of the right to submit a communication;
(e) The facts that are the subject of the communication occurred prior to the entry into force of
the present Protocol for the State Party concerned unless those facts continued after that date.
v. African Charter on Human and Peoples’ Rights and Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa.
• Article 18 of the African Charter on Human and Peoples’ Rights.
• Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa
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Article 14 (1) – States parties shall ensure that the right to health of women,
including sexual and reproductive health is respected and promoted. This
includes among other things
(a) The right to control their fertility
(b) The right to decide whether to have children
Article 14 (2) – States parties shall take all appropriate measures to:
(c) Protect the reproductive rights of women by authorising medical abortion in
cases of sexual assault, rape, incest, and where the continued pregnancy
endangers the mental and physical health of the mother or the life of the
mother or the foetus.
e) Conclusion
From the above it is clear that the provision of Article 120 of the Tamarian Penal Code of 1936
is outdated and contravenes the provisions of various international and regional human rights
instruments which were adopted later in order to protect human rights.
The Tamarian Constitutional Court as the apex court heard the matter and held that Article
120 of the Penal Code is constitutional. This means that Maria has exhausted the domestic
remedies and therefore qualifies to approach the CEDAW Committee. The Committee will
have jurisdiction to deal with the matter brought by WAC on behalf of Maria since the Republic
of Tamari has ratified CEDAW and its Optional Protocol.
3 THE MAY/JUNE 2020 EXAMINATION AS A RESULT OF COVID 19
The examination will be a portfolio examination which will be opened for 48 hours/two days
and it is for 100 marks. The paper contains both problem- and essay-type questions.
When writing the essay type response, ensure that you pay particular attention to the
structure by demarcating your essay into headings and sub headings.
In answering the hypothetical/problem type question, be able to identify the issues raised
and how you will structure your response and demarcate your response accordingly-by using
headings and sub headings .
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Refer to various provisions of the conventions/treatise, case law; comparative analysis of
different provisions, as authority to argue your case.
4 CONCLUSION
We trust that the information provided in this tutorial letter will help you prepare for the
examination.
We wish you well in the examination and to remind you to write to us and let us know if you
are experiencing problems.
Your lecturer(s)
Mmatsie Mooki mookism@[Link]
Saul Makama Makama makamasp@[Link]
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