African Courts and International Human Rights Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact the protection of human rights in these countries is severely limited. National judiciaries, especially if they are granted adequate independence, can use their powers to interpret the constitution and determine the constitutionality of laws, including customary laws, to invalidate and declare null and void, those laws and customs that violate the national constitution and the provisions of international human rights instruments.

An examination of cases from the High Court of Tanzania, the Constitutional Court of South Africa, and the Constitutional Court of Zimbabwe provides insight into how progressive judges are using their interpretive powers to declare unconstitutional, statutes and customary laws that violate human rights.