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Abstract:
The African Court on Human and Peoples’ Rights has been in transition for several years now. The locus of this transition has been an attempt to merge the Court with the African Court of Justice, created in 2003, into a single judicial institution. Established slightly over a decade ago by a Protocol to the African Charter on Human and Peoples’ Rights, the African Court was finally elected in 2006, two years after its constitutive Protocol came into force. Three years later, it is yet to commence its operations. When and if it commences its work, it will only be for a transitional period since the African Union recently adopted a Protocol establishing a single Court, the African Court of Justice and Human Rights. While this is a significant development in establishing institutions to lever human rights protection in Africa, questions have been raised on procedural and substantive aspects of the merger, the speedy nature of the two courts’ transition into a single judicial institution and, more practically, whether the new Court will ‘finally’ ordain a transition into an effective system of human rights protection in Africa. This article compares the Protocol establishing the new African court with the 1998 Protocol establishing the African Court on Human and Peoples’ Rights.

Merged African Court, Complementarity, African Union, African Human Rights System, Jurisdiction, Locus/Jus Standi

Abstract:
Devolution of power has long been a subject of interest to many. But in recent years, devolution has become one of the most highly contested, even divisive concepts in Kenya. While devolution has been advanced as a means of managing Kenya’s ethnic diversity and the failures of the centralized State, it is surprising that there is no agreement on how to devolve power. Even more surprising is the contestation over the advantages and pitfalls of devolution. Of the different shades of the debate, no genre has attracted as much interest, if not fear, as majimboism.

With the ensuing resumption in the constitution making process, there is no doubt that another round of debate on devolution is in waiting. Yet again, contested discourses will revolve around the structure, spheres, and form of devolution of power. But is devolution a panacea to Kenya’s problems? Is the clamour for devolution a mere search for new institutions or means of democratic constitutionalism? What are the irreducible normative elements which devolution of power should entail? Should the primary concern of devolution be the transfer of power to territorial units, or a means of constitutional development and democratic constitutionalism? This chapter reviews these issues.

Devolution, Constitutionalism, Kenya, Democracy, Reforms, State Reconstruction

Abstract:
The last two decades have witnessed significant advances in the human rights landscape in Africa. The period has witnessed a modest, though steady growth of human rights, reflected in the crystalisation of norms and institutions for the protection and promotion of human rights in the continent. A recent entrant to the growing institutional edifice, the African Court on Human and Peoples’ Rights, stands out in particular.

Although an invaluable addition to the machinery for the protection of human rights, the restrictive access to the Court may undermine the utility of the Court. Under the Protocol establishing the Court, States Parties have automatic access to the Court, whereas individuals and non-governmental organizations (NGOs) can only institute cases before it if the State Party concerned makes a declaration accepting the competence of the Court to receive such cases. Even so, the Court still has discretion to receive such cases. This scheme of access to the Court defies the primary raison d'être of international human rights law, namely to protect the individual or groups against inimical conduct of the state. Moreover, states have no incentive to refer human rights cases to international human rights tribunals. Put more bluntly, to rely on the ‘predatory’ state to institute cases before the African Court may well be a case of the poacher turned gamekeeper.