The impact of clawback clauses on human and peoples' rights in Africa

摘要

The African Court on Human and Peoples' Rights and the birth of the African Union are important developments in the history of Africa. For the first time there will be a continental judicial mechanism for the adjudication of human rights issues. However, the African human rights system has been dogged by political bias that has marred the development of a credible human rights regime on the continent. The difficulty may therefore lie in the manner in which the proposed court applies its discretion in relation to the doctrine of the margin of appreciation. As a subsidiary body that has a power of review over state action, the proposed court must tread warily when applying these principles. Lessons may be learnt from the well-established European Court of Human Rights, which has applied and developed the doctrine of margin of appreciation. Applying this knowledge in an African context is important, but it must take the particular circumstances of Africa into account.