The Use of International Law in the Development of Human Rights Jurisprudence in Africa

Abstract

During the early-to-mid-1990s, many African countries adopted new or amended constitutions which included provisions that recognized and adopted international law, particularly international human rights law, as a tool to interpret constitutional, statutory, and customary laws. Throughout the continent, domestic courts, even in countries where national constitutions do not require them to refer to international law, are seeking guidance from international and foreign comparative law when they interpret their bills of rights and other laws. Through this process, these courts are contributing to the development of jurisprudence on human rights in Africa. Thus, courts in African countries have emerged as important change agents, helping to improve the recognition and protection of human rights and fundamental freedoms. Examples of these courts’ contributions to the development of human rights jurisprudence in Africa can be found in case law from South Africa, Uganda, Kenya, and Malawi. Using international and foreign comparative law as tools of interpretation, South Africa’s Constitutional Court declared the country’s death penalty law inconsistent with provisions of the Constitution, and hence, unconstitutional. In Uganda, the Supreme Court sought inspiration from international law in its determination of the constitutionality of provisions of the laws of Uganda, which prescribe the death penalty as a mandatory sentence for murder. The Supreme Court declared these provisions inconsistent with various provisions of the Constitution, and hence, unconstitutional. In Kenya, the Supreme Court ruled on four issues/questions, which included the applicability of international law in general, and international human rights law in particular. Using international and foreign comparative law, the Court affirmed the right to housing for all Kenyans and established the applicability of international law in the resolution of disputes in Kenya, including those involving the violation of socio-economic rights. In Malawi, the High Court sought insights from international and foreign comparative law to approve the adoption of an infant by a nonresident married couple. In its adjudication of this case, the High Court relied on the “best interests of the child” principle, which is enshrined in both the Convention on the Rights of the Child and the African Child Charter. These cases reveal that courts in African countries are playing a critical role in improving and advancing the recognition and protection of human rights and fundamental freedoms in Africa and their decisions are adding to the continent’s emerging human rights jurisprudence.