Never-ending Story: The African Commission Evolving through Practice in Malawi Africa Association, et al v. Mauritania
Source: Human Rights & International Legal Discourse
Julia Harrington and Laura Bingham, ‘Never-Ending Story: The African Commission Evolving through Practice in Malawi Africa Association, et al v. Mauritania’, Human Rights & International Legal Discourse 7, no. 1 (2013): 6–55.
In 2000, the African Commission on Human and Peoples’ Rights issued a decision condemning Mauritania for a wide array of violations of the African Charter on Human and Peoples’ Rights. The decision in Malawi Africa Ass’n, et al. v. Mauritania represents the culmination of nearly a decade of litigation before the Commission, and yet the decision itself marked the conclusion of only one phase of the Commission’s long engagement with Mauritania, which continues to the present day. Through an examination of the Commission’s consideration of the case and the now decade-long struggle for implementation of the decision, the authors explore the character and effectiveness of the Commission as a mechanism for securing compliance with the African Charter and for advancing respect for human rights in general. As the Mauritania case spans nearly the entire existence of the Commission – the Commission was established in 1987, the first Mauritania communications filed in 1991– it allows us to trace how the practices of the Commission have evolved through the engagement of various civil society actors and through several tumultuous regime changes in Mauritania. We ground our examination of the effectiveness of African Commission in its distinguishing characteristics as an international institution, i.e. its specialization as a human rights mechanism, its regional focus on Africa and its relative youth. All three qualities, we argue, have contributed to the development of the ACHPR’s current, and still evolving, method of fulfilling its mandate. We focus in particular on the role of procedural innovation in advancing (or limiting) progress in the Mauritania case – innovation on both the part of the Commission and the litigants. The equal measure of the case history that is composed of the struggle for implementation permits us to compare Mauritania’s compliance with its Charter obligations as a function of implementation of the decision with its ‘voluntary’ compliance with its Charter obligations or compliance coerced by other means prior to the 2000 decision. Viewing the operation of the ACHPR through the prism of a single, extended case study, we gain a direct and palpable understanding of the growth and practice of the institution, over a period of 20 years, complete with inconsistencies, delays and milestone achievements. This long view leads to our conclusion that, while the ACHPR exhibits many of the qualities typically associated with “weak” enforcement potential and therefore only modest efficacy, this same openness that leaves the ACHPR vulnerable to irrelevance as an institution also permits the kind of innovation that has led to its greatest impact.
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