Understanding remedies for violations of the right to development in domestic courts in Africa

Abstract

Article 22 of the African Charter of Human and Peoples’ Rights guarantees the right to development, but its implementation in African domestic courts is underexplored. This mini-dissertation examines what remedies for violations of the right to development may look like in domestic African courts. On the basis of an analysis of the jurisprudence of the African Commission and Court on Human and Peoples’ Rights, highlighting both procedural and substantive violations, the study concludes that remedies should be collective, adaptive, and forward-looking, and aligned with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. It evaluates how these regional remedies can be applied in national courts by comparing domestic jurisprudence. Findings suggest that while participation orders and restitution are easily transferable from the regional to the national, compensation mechanisms may require innovative approaches, such as the use of development funds. The study then assesses how constitutional status and legal philosophy impact the implementation of the right to development. It argues that if this right is viewed as non-justiciable, its enforcement may be limited. Therefore, it advocates for recognising the right to development as a justiciable right under domestic law, and adopting a hybrid legal philosophy that encompasses corrective justice, distributive justice, and the capabilities approach to enhance its domestic operationalisation.