Whistling Past the Graveyard: Amnesty and the Right to an Effective Remedy Under the African Charter: The Case of South Africa and Moçambique
58 Pages Posted: 23 Feb 2015
Date Written: December 10, 2004
This piece treats the question of how the grant of amnesty in situations of mass atrocity impacts the rights of victims, in particular, the right to and effective remedy. Experience shows that the practice of granting amnesties in situations of human rights violations undercuts the seriousness with which obligations to establish accountability for human rights violations ought to be taken. Equally, the study argues that amnesties often are in violation of the right to an effective remedy inscribed in various human rights treaties and other instruments, both regional and universal. In this regard, there appears to be a sharp conflict between state obligations to establish accountability for violations of human rights and considerations of national peace and reconciliation often cited as the justification for amnesty, especially after generalised upheaval that entailed substantial atrocities.
Although victims and their relatives would ordinarily have recourse to the domestic machinery for redress, the promulgation of amnesty laws, as in the case of South Africa and a number of other African countries defeats this possibility. In some, notably South Africa, the amnesty arrangement has permitted a certain degree of redress. In others, such as Ghana, Angola (where the Lusaka Peace Agreement provided a framework for blanket amnesty that indemnified both UNITA and government forces and functionaries) and Moçambique, blanket amnesties have offered no chance of redress. Using South Africa and Mozambique as case studies, the study first, attempts rationalise amnesty in international human rights law (IHRL) generally, and specifically the African Charter on Human and Peoples’ Rights. Secondly, to reconcile amnesties as instruments of addressing national concerns of peace and reconciliation with individuals’ rights to appropriate, sufficient and effective remedies for human rights violations at municipal level while remaining cognisant of the possibility of pursuing redress in an international forum, in this case, the African Court. These are the central questions that this study proposes to grapple with, particularly with a view of establishing how a case arising out of an amnesty situation in which denial of justice is alleged would be, and should be, decided by the African Court. In this regard, specific reference will be made to South Africa and Moçambique as representative case studies.
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