A critical analysis of the non-derogable rights in a state of emergency under the African system : the case of Ethiopia and Mozambique

Abstract

"Astoundingly, the African Charter on Human and Peoples' Rights (ACHPR) does not contain [a] derogation clause. Furthermore, it has been established by the African Commission on Human and Peoples' Rights (the Commission) in the case of Commission Nationale des Droits de l'Homme et des Libertes v Chad (Commission Nationale case) that a member state of teh ACHPR cannot derogate human rights in case of emergencies. Hence, the Commission's view may lead to a conclusion that all rights under the ACHPR are non-derogable. This raises the issue of whether it is tenable to conclude that a state facing a situation that endangers the nation, should not at all derogate from the provisions of the ACHPR. Emergency clauses, which permit derogation of human rights in times of emergencies, are also found in most domestic legal instruments. Most African states also encompass this clause in their constitutions. Although the levels of compliance by states are questionable, some of these constitutions also include a list of non-derogable rights. The constitutions of Ethiopia and Mozambique also provide for a derogation clause and a list of non-derogable rights. The aim of the study is to make a critical analysis of the African derogation system. Firstly, the study will analyse the concept of derogation and non-derogable rights in general. Secondly, the jurisprudence and the law of the African system with regard to derogation and non-derogable rights will be examined. In analysing the jurisprudence of the Commission effort will be made to critically study the cases that have been examined by the Commission in relation to derogation and non-derogable rights. Lastly, the compatibility of the Ethiopian and Mozambique constitutions in light of the African system and international standards will be discussed. ... Chapter one highlights the basis and structure of the entire study. Chapter two presents a brief historical evolution as well as conceptual framework of the system of derogation and non-derogable human rights in state of emergency. Chapter three focuses on the ACHPR and the jurisprudence of the Commission with regard to derogation and non-derogable rights in state of emergency. Chapter four assesses the compatibility of the non-derogable rights provided in the constitutions of African states with African and international standards. This chapter will [analyse], in particular, the constitutions and the practices of Ethiopia and Mozambique. Chapter five is a conclusion of the overall study stating specific recommendations." -- Introduction.