mothers up to a certain age, only ten state parties<fnref n="39" /> have enacted specific legislation for the provision of non-custodial sentences for pregnant women and mothers with young children. Moreover, only nine state parties that reported<fnref n="40" /> have established special institutions or units within prisons, such as Mother and Baby Units, to cater to the specific needs of incarcerated mothers and their children. Six state parties<fnref n="41" /> have legal provisions providing for alternative care arrangements or support systems to prevent children from growing up in the prison environment. Regarding the death sentence, three states<fnref n="42" /> have completely banned it, with three others<fnref n="43" /> specifically prohibiting it for pregnant women or mothers with young children, and two state parties<fnref n="44" /> delaying it until after childbirth. Only five state parties<fnref n="45" /> presented specific data, five state parties<fnref n="46" /> made no reference to measures undertaken to implement article 30, and four state parties<fnref n="47" /> noted that there is an absence of legislation concerning the rights of children of incarcerated caregivers.

Despite the enactment of laws in numerous states allowing children to stay with their incarcerated mothers temporarily, article 30(d) stipulates that 'a mother shall not be imprisoned with her child'. This provision underscores the African Children's Charter's emphasis on fostering a 'family environment in an atmosphere of happiness, love and understanding' and reinforces the obligation of state parties to provide alternatives to pre and post-trial custody for primary caregivers.<fnref n="48" /> Approaches to handling the incarceration of primary caregivers with children or infants vary among state parties. For instance, in Madagascar, mothers in prison are allowed to stay with their children up to the age of three for breastfeeding and care within a designated penal facility, while religious associations have established a nursery for children of incarcerated mothers.<fnref n="49" /> Likewise, in Zimbabwe, where a daycare centre has been established at the country's largest female prison to provide a normal environment for children accompanying their mothers in prison.<fnref n="50" /> An observation from the state

<footnote n="39">39 Algeria, Burkina Faso, Burundi, Eritrea, Ghana, Niger, Nigeria, Rwanda, Senegal and Zambia.</footnote>

<footnote n="40">40 Benin, Chad, Ghana, Kenya, Mauritania, Mozambique, Nigeria, Rwanda and South Africa.</footnote>

<footnote n="41">41 Botswana, Eritrea, Eswatini, Ghana, Guinea, and Lesotho.</footnote>

<footnote n="42">42 Benin, Gabon and South Africa.</footnote>

<footnote n="43">43 Eritrea, Ghana and Zambia.</footnote>

<footnote n="44">44 Madagascar and Niger.</footnote>

<footnote n="45">45 Benin (Initial and 1st Periodic Report), Chad (1st Periodic Report), Ethiopia (1st Periodic Report), Republic of Guinea (Initial Report) and South Africa (1st Periodic Report).</footnote>

<footnote n="46">46 Cameroon, Djibouti, Guinea Bissau, Malawi and Seychelles.</footnote>

<footnote n="47">47 Burkina Faso, Comoros, Republic of Congo and Niger.</footnote>

<footnote n="48">48 As above, para 54.</footnote>

<footnote n="49">49 République de Madagascar, 'Initial Report on the Implementation of the African Charter on the Rights and Welfare of the Child' (2014) para 392.</footnote>

<footnote n="50">50 Republic of Zimbabwe, 'Initial Report of the Government of the Republic of Zimbabwe under the African Charter on the Rights and Welfare of the Child' (2013) para 9.3.2.</footnote>
reports reveals that many only specify an age threshold for children staying in prisons but rarely address the conditions of the environment and the considerations provided to children living in such settings, including measures to ensure their health and development comparable to children outside of prisons. The General Comment underscores that determining the best interests of children of incarcerated primary caregivers cannot rely solely on formalistic approaches; it makes reference to prevalent narratives such as the 'child at risk' and 'good mother' in African laws and policies, which oversimplify the matter, leading to misconceptions about incarcerated parents and their children by suggesting a uniformity of responses that may not be applicable in all cases.<fnref n="51" /> Therefore, in light of this and the progress made thus far, there is a need for a more comprehensive and intentional approach to legislation regarding the incarceration of parents or caregivers with their children.

Moreover, only six state party<fnref n="52" /> reports address alternative care arrangements for children outside the prison system, suggesting a gap in comprehensive support services fully supporting the rights and well-being of children of incarcerated parents and caregivers. In Botswana, section 64 of the Children's Act 2009 outlines precise provisions in this regard. According to this section, if a parent, relative, guardian, or custodian is convicted under this Act, a social worker must, within 14 days, seek an order from the children's court to place the child into alternative care.<fnref n="53" /> Similarly, in Ghana, a system is in place where family members are informed to take custody of infants ready to be weaned. If they fail to do so by the age of two, the children are transferred to a Children's Home. Furthermore, the Department of Social Welfare in Ghana facilitates communication between convicted mothers and their families, allowing visits for bonding purposes.<fnref n="54" /> The General Comment underscores the obligation of state parties to ensure appropriate alternative care for children of imprisoned parents and caregivers, as stipulated in article 25 of the African Children's Charter. Ideally, the process of identifying alternative care should commence immediately following arrest, with regular supervision and review thereafter.<fnref n="55" /> In a similar vein, the issue of periodic judicial review for children residing in prison is inadequately addressed in the state party reports, except for in the state party report of Zimbabwe. In Zimbabwe, while not a formal judicial review process, there is a mention of a periodic presidential amnesty, during which nursing mothers are considered for early release.<fnref n="56" /> However, across other state parties, there is a significant gap

<footnote n="51">51 ACERWC (n 9) para 14.</footnote>

<footnote n="52">52 Botswana, Eritrea, Eswatini, Ghana, Lesotho and Guinea.</footnote>

<footnote n="53">53 Republic of Botswana, 'Combined 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Report Submitted by the Republic of Botswana to the African Committee of Experts on the Rights and Welfare of the Child on the Implementation of the African Charter on the Rights and Welfare of the Child (2003-2021)' (2021) para 259.</footnote>

<footnote n="54">54 Republic of Ghana, 'Initial, First, and Second Consolidated Report to the African Committee of Experts on the Rights and Welfare of the Child (2005-2013)' (2014) para 280.</footnote>

<footnote n="55">55 ACERWC (n 9) para 40.</footnote>

<footnote n="56">56 Republic of Zimbabwe (n 50).</footnote>
in legislative mechanisms ensuring that decisions regarding a child's residency in prison with their mother or caregiver are subject to judicial review, as required in the General Comment.<fnref n="57" />

From the state party reports, only some countries explicitly outline provisions or measures of non-custodial measures for pregnant women and mothers with young children (and some that apply to all people, indeed including this group). For instance, Sections 221-225 of the Nigeria Child Rights Act mandates courts to consider non-institutional sentences for expectant or nursing mothers as an alternative to imprisonment. Should imprisonment be mandatory, expectant and nursing mothers are directed to be held at a Special Mother's Centre until their child reaches six years of age.<fnref n="58" /> Conversely, in both Algeria and Eritrea, legislation permits the postponement of sentencing for pregnant women or mothers of young children. In Algeria, article 16 of Law 05-04 allows for the postponement of the execution of custodial sentences for pregnant women or mothers of children under 24 months.<fnref n="59" /> Similarly, in Eritrea, article 206(a) of the Transitional Criminal Procedure Code permits the postponement of penalty execution for women sentenced to arrest or simple imprisonment not exceeding one year.<fnref n="60" /> In Burkina Faso, according to Law No 007-2004/AN of 6 April 2004, which governs the administration of community service, courts handling correctional matters have the authority to impose community service sentences. However, this option is available only to defendants convicted of offences punishable by imprisonment. Despite its general applicability to all individuals, this law can indeed apply to pregnant women and mothers with young children.<fnref n="61" /> It is worth noting that article 19 of the African Children's Charter grants a child the entitlement to parental care and protection, affirming that only a judicial authority can separate a child from parental care, and only if it is in the child's best interest. The sentencing of parents to prison or custodial settings violates the rights of a child, according to article 19 of the African Children's Charter. Therefore, the courts of state parties must take into account the best interest of children as per article 4, read with article 30(1)(a) and 19(1) regarding the separation of a child from parental care when considering custodial sentences for convicted parents and caregivers.<fnref n="62" />

The existence of specialised prison units like Mother and Baby Units (MBUs) in a few states signifies a targeted effort to cater to the

<footnote n="57">57 ACERWC (n 9) para 24(c).</footnote>

<footnote n="58">58 Federal Republic of Nigeria, 'Nigeria's 2nd and 3rd Combined Country Periodic Report on the Implementation of the African Union Charter on the Rights and Welfare of the Child' (2014) para 6.6.1.</footnote>

<footnote n="59">59 People's Democratic Republic of Algeria, 'Initial Report on the African Charter on the Rights and Welfare of the Child' para 362.</footnote>

<footnote n="60">60 The State of Eritrea, 'Consolidated First, Second, Third, and Fourth Periodic National Reports on the Implementation of the African Charter on the Rights and Welfare of the Child' (2015) para 308.</footnote>

<footnote n="61">61 Burkina Faso, 'Quatrième, Cinquième et Sixième Rapports Périodiques Cumulés du Burkina Faso sur la Mise en Œuvre de la Charte Africaine des Droits et du Bien Être de l'Enfant Pour la Période de 2011 à 2015' (2016) para 187.</footnote>

<footnote n="62">62 Alternative Care Guidelines (n 34) para 38.</footnote>
specific needs of this demographic. Article 30 envisions special
treatment for pregnant mothers and mothers of infants and young
children accused or found guilty of infringing the penal law. The term
'special' implies a heightened level of obligation for state parties,
reflecting the increased vulnerability of these children who require
specific measures.<fnref n="63" /> Article 30(1)(c) the African Children's Charter
calls on state parties to establish special alternative institutions for
holding mothers with a focus on realising children's rights. For
instance, programs that facilitate mothers residing with their infants in
prison nurseries could be expanded and employed if considered in the
child's interests.<fnref n="64" /> In response to this, some countries have taken
concrete steps to create specialised units tailored to the needs of
mothers and their young children within correctional facilities.

South Africa has made commendable progress in establishing specialised prison units, such as MBUs, and is one of the few state parties to extensively report on the measures undertaken in this regard. The Department of Correctional Services initiated the creation of MBUs to provide child-friendly facilities specifically designed for incarcerated mothers and their children.<fnref n="65" /> These units not only ensure the physical separation of mothers from the general female prison population but also offer essential amenities, such as baby cots, toys, and kitchens, to meet the needs of children and their incarcerated mothers.<fnref n="66" /> Mothers are accommodated in either single cells with a bed and cot, or in communal cells with cots placed adjacent to the mothers' beds.<fnref n="67" /> Early Childhood Development centres are integrated within these units to support the holistic development of children residing in prisons with their mothers. These centres focus on various aspects of child development, including emotional, cognitive, sensory, moral, physical, and social growth, aligning with the best interests of the child.<fnref n="68" />

In addition to South Africa, other state parties such as Chad, Kenya, and Rwanda, have also introduced measures to provide for specialised facilities for incarcerated mothers. In Chad, Law No 19/PR/2017 on the Penitentiary Regime of 28 July 2017 provides pregnant women with special protection. Articles 26 and 27 of this law provide that pregnant women are ensured a separate area for the last two months of pregnancy and the following two months postpartum. Throughout their pregnancy, they are entitled to comprehensive support and care to ensure their well-being.<fnref n="69" /> Similarly, in Kenya, the Persons Deprived of

<footnote n="63">63 Alternative Care Guidelines (n 34) para 34 and 35.</footnote>

<footnote n="64">64 Alternative Care Guidelines (n 34) para 50 and 51.</footnote>

<footnote n="65">65 South Africa, 'South Africa's second Country Report to the African Committee of Experts on the Rights and Welfare of the Child on the African Charter 'on the Rights and Welfare of the Child' (n.d.) paras 303 and 306.</footnote>

<footnote n="66">66 As above.</footnote>

<footnote n="67">67 South Africa, 'South Africa's Third Periodic Country Report to the African Committee of Experts on the Rights and Welfare of the Child: Implementation of the African Charter on the Rights and Welfare of the Child' (n.d.) para 417.</footnote>

<footnote n="68">68 South Africa (n 60) para 304.</footnote>

<footnote n="69">69 Republique Du Tchad, 'Rapport National Périodique Cumule (5ème et 6ème) sur la Mise en Œuvre des Dispositions de la Charte Africaine des Droits et Bien Être de l'Enfant' (2022) para 177.</footnote>
Liberty Act No. 23 of 2014 mandates separate facilities for mothers with infant children. Additionally, these mothers receive nutritional supplements to support their child's growth and development. The government has allocated resources to ensure that children, pregnant women, and lactating mothers in prison receive a nutritious diet.<fnref n="70" /> In Rwanda, mothers with children under three years are detained in special wards reserved for them. Furthermore, the government has established Early Childhood Development Centres within prison facilities. These centres cater to children under three years who reside with their mothers in prison, ensuring they receive appropriate food supplements for their nutritional needs.<fnref n="71" /> However, despite these efforts, many state party reports suggest that resources have been insufficiently allocated to ensure the establishment of special alternative institutions that adequately protect children's rights, indicating a persisting challenge since the adoption of the General Comment.

The outright ban on the death penalty, including specific provisions for pregnant women and mothers in certain state parties, reflects a protective measure aimed at safeguarding maternal rights and child welfare. While the majority of countries worldwide prohibit the death penalty for pregnant women, certain state parties to the African Children's Charter opt to postpone execution until shortly after birth, thus violating article 30(1)(e), despite its provisions.<fnref n="72" /> Legislative reform is, therefore, essential, as the obligation under article 30 does not merely involve postponing execution but requires that such sentences not be imposed in the first place.<fnref n="73" /> Recognising the continued practice of *de facto* moratoriums that postpone executions, as reported by countries like Niger,<fnref n="74" /> particularly in cases involving pregnant women, General Comment 1 establishes interim safeguards to protect children until comprehensive legislative reforms are implemented. These measures include informing children about the status of their caregivers on death row; commuting the sentences of prisoners who have spent prolonged periods on death row; integrating comprehensive rehabilitation and development programs that address their specific needs; promoting and maintaining regular contact between incarcerated caregivers and their families; and the development of pre-release initiatives, such as halfway houses.<fnref n="75" />

Moreover, a few countries have attempted to provide data on the number of children living with incarcerated parents or caregivers,

<footnote n="70">70 Republic of Kenya, 'The Second and Third State Party Periodic Report 2012-2017 on the African Charter on the Rights and Welfare of the Child Presented to the African Union' (2018) page 71.</footnote>

<footnote n="71">71 Republic of Rwanda 'Second and Third Periodic Reports on the Implementation of the African Charter on the Rights and Welfare of the Child' (2014) para 130.</footnote>

<footnote n="72">72 ACERWC (n 9) para 56.</footnote>

<footnote n="73">73 ACERWC (n 9) para 59.</footnote>

<footnote n="74">74 Republic of Niger, 'Report submitted by Niger under article 43(1)(b) of the African Charter on the Rights and Welfare of the Child' (2017) (English translation) para 464.</footnote>

<footnote n="75">75 ACERWC (n 9) paras 58 and 59.</footnote>
which, despite not being incredibly comprehensive or disaggregated by
factors like age and gender, indicates progress and a willingness to
ensure the implementation of article 30 and addressing the needs of
this vulnerable group. However, underlining the need for an
individualised, informed, and qualitative approach, the General
Comment stresses the importance of routinely gathering statistics
about children of incarcerated parents and caregivers by relevant
agencies to inform policy and practice in state parties.<fnref n="76" />

While some progress has been made in legislative and
administrative measures to protect the rights of children of
incarcerated parents and caregivers, the overall lack of comprehensive
dates and information underscores the need for continued and
strengthened efforts to ensure full compliance with the General
Comment.

3.2 Policy measures

The General Comment, though not in explicit detail, requires that state
parties include comprehensive information illustrating how national
policies and action plans convert constitutional and legislative
frameworks ‘into concrete and measurable actions to implement article
30’.<fnref n="77" /> Additionally, it is strongly recommended that these policies
should prioritise reducing the separation between imprisoned parents
and their children.<fnref n="78" /> Yet, a review of the state party reports since the
General Comment reveals that none of the 56 reports discuss prison-
related policies or action plans that address the rights of children of
incarcerated parents and caregivers and the measures are in place to
uphold the rights of their parents in accordance with the provisions of
article 30 of the African Children’s Charter. Although some reports
acknowledge the contributions of non-governmental organisations in
supporting the implementation of article 30, there is seldom a direct
acknowledgment of the state parties’ efforts to meet their obligations.<fnref n="79" />
This oversight is a notable limitation and warrants criticism of both the
state parties and the Committee. Often, the Concluding Observations
and Recommendations sent to the state parties include a paragraph
regarding children of incarcerated parents, wherein the Committee
urges the state party to consider General Comment 1 of the African
Children’s Charter in the implementation of article 30, but this
recommendation tends to be generic rather than tailored to individual
circumstances highlighted in the respective state party reports,

<footnote n="76">76 ACERWC (n 9) para 16.</footnote>

<footnote n="77">77 ACERWC (n 9) para 66.</footnote>

<footnote n="78">78 ACERWC (n 9) para 52.</footnote>

<footnote n="79">79 For example, in Ethiopia, the Prison Fellowship provides formal education to children and skills training to mothers across 90 prisons, with over 100 children enrolled in classes. In the Republic of Guinea, NGOs like Terre des Hommes, Sabou Guinée, and SOS Children engage in activities inside and outside prisons, such as constructing dining facilities, renovating dormitories, training prison staff, providing healthcare for children, and more.</footnote>
reflecting a lack of the individualised approach that the General Comment promotes state parties to undertake.

## 4 DISCUSSION

The overall reporting on the measures undertaken to implement article 30 and General Comment 1 remains inadequate for several reasons, as discussed below. The five indicators in section 2.1. to evaluate progress include constitutional and legislative measures, translation into national policies, implementation mechanisms, the extent of enjoyment of article 30, and evaluation frameworks. However, only the first indicator, detailing constitutional and legislative measures, is addressed. There is a very strong focus in the state party reports on legislative measures only, which evidently results in a lack of detailed information on the implementation and practical outcomes for children of incarcerated parents and primary caregivers, as revealed in the 56 state party reports reviewed. The reports generally lack detailed accounts of how legislative measures are being practically implemented, which fails to meet the second indicator of translating how national policy frameworks and action plans translate the legislative and constitutional measures into concrete and measurable actions.

While there are legislative actions and some policy measures in place to support the rights of children of incarcerated parents, there is a considerable lack of comprehensive action and detailed reporting that would demonstrate a full commitment to the five indicators. There is a lack of data on the prevalence of children of incarcerated parents and caregivers, and the monitoring and evaluation of the practices in place, as well as clear indication of implementation mechanisms in place to execute the action plans and policies. These are all key elements discussed in the General Comment. However, as indicated in section 3.1, only five<fnref n="80" /> of the 39 state parties include data in their reports, despite clear guidance to routinely compile and review such statistics to inform effective policy and practice. Moreover, the reports frequently lack detailed information, with many providing only brief mentions of legislation, spanning just one to three paragraphs without exploring the efficacy of these laws in practice, which illustrates a disregard for reporting on measures undertaken to implement article 30. The fourth indicator requires reports on the level of enjoyment of rights under article 30, including successes and challenges. Considering only five states presented specific data, this indicates a failure to fully meet this indicator. Moreover, five state parties<fnref n="81" /> made no reference to measures undertaken to implement article 30, and four state parties<fnref n="82" /> noted that there is an absence of legislation concerning the rights of children of incarcerated caregivers.

<footnote n="80">80 Benin (both reports); 1st Periodic Report: Chad, Ethiopia and South Africa.</footnote>

<footnote n="81">81 Cameroon, Djibouti, Guinea Bissau, Malawi and Seychelles.</footnote>

<footnote n="82">82 Burkina Faso, Comoros, Republic of Congo and Niger.</footnote>
Regarding the final indicator, which concerns evaluation and monitoring mechanisms, although the reports lack detailed descriptions of these processes, it is notable that 11 state parties had more than one report considered by the Committee.<fnref n="83" /> A review of these specific countries arguably illustrates notable progress is evident in their adherence to article 30 of the African Children's Charter, alongside the implementation of measures outlined in the General Comment. Chad provides a clear example of legislative improvements following the Concluding Observations and Recommendations and Recommendations of the Committee after the consideration of the Initial Report. These recommendations encouraged the state party to consider General Comment 1 in the implementation of article 30. Chad's First Periodic Report references the adoption of Law No 19/PR/2017 on the Penitentiary Regime which mandates special protection for pregnant women in custody.<fnref n="84" /> Similarly, Benin's Initial Report covering the period up to 2015, two years after the adoption of the General Comment by the Committee, references a new Child Code that included protection of the rights of children affected by parental incarceration. Although the specific year of enactment is unspecified, the provisions of the Child Code align closely with principles articulated in General Comment 1. These provisions cover rights for children born in prison, regulations allowing children to remain with their incarcerated mothers until a specified age, and protections for pregnant women in detention.<fnref n="85" /> A similar trend is observed in the First Periodic Report of the Republic of Guinea. Article 50 of the new Child Code, responding to the Concluding Observations and Recommendations of the Committee, allows for the possibility of a child residing in prison with their mother (provided the conditions are suitable), that a specialised facility is established, and it incorporates the elements of article 30(f), emphasising that the focus of the prison system should ultimately be on the rehabilitation and reintegration of the parent and primary caregiver.<fnref n="86" /> These legislative developments reflect a degree of domestic implementation of the General Comment despite the reports themselves not explicitly acknowledging the influence of the General Comment.

The indicators outlined in the General Comment served as the primary basis for assessing the measures undertaken by state parties to implement article 30, and the depth of information provided in the state party reports to the Committee, as discussed above. However, beyond these indicators, a broader analysis reveals significant gaps in the effective realisation of children's rights, largely rooted in a lack of political will among state parties. The Concluding Observations and Recommendations of the Committee consistently reveal a recurring

<footnote n="83">83 Benin, Chad, Eritrea, Ethiopia, Guinea, Ivory Coast, Kenya, Lesotho, Rwanda, Senegal and South Africa.</footnote>

<footnote n="84">84 République du Tchad (n 68).</footnote>

<footnote n="85">85 Republique du Benin 'Deuxième (2ème) rapport périodique de mise en œuvre de la Charte Africaine des Droits et du Bien-Etre de l'Enfant' (2022) 43-44.</footnote>

<footnote n="86">86 Republique de Guinee 'Deuxieme, troisieme, Quatrieme, Cinquieme et Sixieme rapports périodique sur l'application de la Charte Africaine des Droits et du Bien Etre de l'Enfant (CADBE)' (2019) para 176.</footnote>
trend of insufficient prioritisation of children's rights, often reflected in the low budgetary allocation towards the implementation of the rights and welfare of children as enshrined in the Charter. The Committee has repeatedly called on state parties to increase budgetary allocations. This is particularly evident among the 11 state parties<fnref n="87" /> that have undergone more than one state party report review over the ten years since the adoption of the General Comment, each receiving at least two Concluding Observations and Recommendations during the reporting cycles. Budgetary allocation, which falls under the general measures of implementation in the Concluding Observations, is a key area where the commitment to children's rights is assessed. The Committee continues to emphasise the importance of sufficient budgetary allocation as a foundational measure to ensure effective implementation of the rights of children, and monitoring the implementation of these rights.

For instance, the Committee observed a significant decline in budget allocations for the South African Human Rights Commission, particularly for its role in promoting children's rights. This decline was noted across two reporting cycles, suggesting a lack of sustained commitment to children's issues despite ongoing recommendations for increased funding.<fnref n="88" /> Similarly, in Rwanda, while there was a slight increase in budget allocations for child rights, the Committee highlighted that these increments were inadequate relative to population growth and inflation, ultimately affecting the quality of health and education services for children.<fnref n="89" /> In Lesotho, the Committee pointed out that the Ministry of Social Development's mandate extends beyond child rights, resulting in limited dedicated funding for children's issues.<fnref n="90" />

<footnote n="87">87 Benin, Chad, Eritrea, Ethiopia, Guinea, Ivory Coast, Kenya, Lesotho, Rwanda, Senegal and South Africa.</footnote>

<footnote n="88">88 ACERWC, Concluding Observations and Recommendations of the African Committee of Experts on The Rights and Welfare of the Child to the Government of the Republic of South Africa on its Second Periodic Report on the Implementation of the African Charter on the Rights and Welfare of the Child (2023) para 6; ACERWC, Concluding Observations and Recommendations of the African Committee of Experts on The Rights and Welfare of the Child to the Government of the Republic Of South Africa on its First Periodic Report on the Implementation of the African Charter on the Rights and Welfare of the Child (2019) para 7.</footnote>

<footnote n="89">89 ACERWC, Concluding Observations and Recommendations by the African Committee of Experts on the Rights and Welfare (ACERWC) of the Child on the Second Periodic Report of the Republic of Rwanda on the Status of Implementation of the African Charter on the Rights and Welfare of the Child (2019) paras 9 and 10; Concluding Observations and Recommendations by the African Committee of Experts on the Rights and Welfare (ACERWC) of the Child on the Second and Third Periodic Report of the Republic of Rwanda on the Status of Implementation of the African Charter on the Rights and Welfare of the Child (n.d.) para 8.</footnote>

<footnote n="90">90 ACERWC, Concluding Observations and Recommendations of the African Committee of Experts on the Rights and Welfare to the Kingdom of Lesotho on the First Periodic Report on the Implementation of the African Charter on the Rights and Welfare of the Child (2023) paras 6 and 7.</footnote>
This general lack of political will becomes more apparent when examining the prioritisation of a vulnerable group of children, children of incarcerated parents and caregivers, especially given the lack of the child rights-based approach to the implementation of article 30 at the domestic level, particularly evident in three key areas. First, there is a significant lack in the establishment of specialised facilities for children of incarcerated parents and caregivers. Second, there is a lack of non-custodial measures across the state party reports. Third, there is limited mention of periodic judicial review for children who are living in prison with their parents or caregivers. As indicated in section 3.1., nine state parties have established special facilities or units such as Mother and Baby Units, however, this is not a widespread practice as it is not even mentioned in the other state party reports. Moreover, despite the absence of special facilities to house mothers and their children, there is also a gap in the number of reports that make reference to the provision of non-custodial measures or alternative arrangements for children in this situation. This shortfall is especially concerning when considering the comprehensive options for non-custodial measures outlined in the Tokyo Rules, which include a wide range of less restrictive alternatives to facilitate offender rehabilitation and protect societal and victim interests. These measures range from verbal sanctions and economic penalties to probation, community service, and house arrest, underscoring a universal approach to minimising incarceration. Last, the periodic judicial review of the conditions and status of children who remain in custody with their parents appears to be inadequately addressed. These points beg the question of whether the best interest principle of the child is being considered in the sentencing of the parent and or primary caregiver, and the possible consequence on the affected child.

## 5 CONCLUSION AND RECOMMENDATIONS

In conclusion, the domestic implementation of article 30 following a decade since the adoption of General Comment 1 reveals a substantial variation in the level of compliance, highlighting a concerning inconsistency in the adoption of the principles of article 30 across the continent. Legislative measures, while significant in a few countries, are not universally reflective of a commitment to the underlying principles of article 30. Notably, only a select number of states have established specialised facilities or adapted their judicial processes to prioritise non-custodial measures for incarcerated parents, directly impacting the welfare of the children involved. Moreover, the inadequacy of detailed data collection and systematic monitoring mechanisms is concerning because without comprehensive data, it is challenging to assess the full impact of implemented measures or to understand the scope of ongoing issues fully. This gap not only impedes the effectiveness of current policies but also complicates the development of targeted interventions that could address the specific needs of affected children. Despite the legislative intentions, the practical outcomes for children of incarcerated parents and caregivers remain largely unaddressed, with many states lacking the
infrastructure or policy provisions to effectively support the non-custodial and rehabilitative aspirations envisioned by the African Children's Charter and the General Comment.

This is not only a criticism of the progress made and challenges that persists, but also a call to action. The future efforts of state parties must focus on ensuring that the protections intended by article 30 are not only legislated but also effectively implemented and monitored to adequately protect the rights and welfare of children affected by the incarceration of their parents or primary caregivers. In this regard, this article recommends the following:

> State parties to the African Children's Charter should strengthen information provided in the state reports submitted to the Committee by ensuring the five indicators outlined in the General Comment are reflected: (i) ensure detailed reporting on constitutional and legislative measures implementing article 30; (ii) clarify how national policy frameworks and action plans operationalise these measures into concrete and measurable actions to implement article 30; (iii) establish clear implementation mechanisms outlining the execution of policies, action plans, and programs for effective realisation of article 30; (iv) report on the extent to which rights under article 30 are enjoyed, indicating implementation efforts and progress toward full realisation; and (v) outline evaluation and monitoring mechanisms established to oversee the effective implementation of article 30.

State parties to the African Children's Charter should incorporate a child-rights based approach as the foundation for legal and policy frameworks, upholding the four general principles (non-discrimination, best interest of the child, survival and development, and child participation) of the Charter throughout all stages of the imprisonment process, from pre-trial to imprisonment, and the reintegration period following release.

State parties to the African Children's Charter ensure the necessary legal protections and administrative procedures are established and implemented that prioritise non-custodial sentences over custodial ones for parents and primary caregivers during sentencing, including pre-trial and trial phases, whenever feasible. Alternatives to incarceration should be provided for and implemented on a case-by-case basis, taking into full account the potential impact of different sentences on the well-being of the affected child and upholding the best interest of the child as the primary consideration.

State parties to the African Children's Charter should, following article 30(1)(c) of the African Children's Charter and article 24(b) of the Maputo Protocol, establish special institutions for holding pregnant women and mothers of young children/infants in prison. These institutions should be designed to focus on realising children's rights, potentially including programs and prison nurseries.

State parties to the African Children's Charter ensure that children incarcerated with their parent or primary caregiver are not discriminated against based on the status of their caregiver and are provided with comprehensive social services, including adequate healthcare and educational resources.
State parties to the African Children's Charter should completely prohibit the death penalty for parents and primary caregivers, both in law and practice in accordance with article 30(1)(e); and adopt and implement alternative care policies that provide for children whose parent or primary caregiver are incarcerated, following guidance provided in UN Guidelines for the Alternative Care of Children.

In addition to the above recommendations to state parties, the role of the Committee is also emphasised. The Committee must take a more proactive role in its engagement in the state party reporting procedure. Beyond setting standards and developing documents, it is important to not only to monitor but also to push for the enforcement of the General Comment 1 until the outcomes of state party reports align closely with the objectives of the General Comment and that there is a demonstrable improvement in meeting the specified indicators. This article, therefore, not only underscores the necessity for enhanced commitment and accountability but also highlights the collaborative imperative across all levels to ensure that the rights and welfare of children affected by parental incarceration are actively and effectively protected.
Annex 1: Sessions and state reports considered since the Committee's adoption of General Comment 1

<table><thead><tr><td>Date</td><td>Session</td><td>Reports Considered</td></tr></thead><tbody><tr><td>9 Apr - 16 Apr 2014</td><td>23rd Ordinary Session</td><td>Initial Report: Liberia</td></tr><tr><td rowspan="2">7 Oct - 11 Oct 2014</td><td rowspan="2">1st Extra-Ordinary Session</td><td>Initial Report: Ethiopia, Republic of Guinea, Mozambique, South Africa</td></tr><tr><td>1st Periodic Report: Kenya</td></tr><tr><td>1 Dec - 6 Dec 2014</td><td>24th Ordinary Session</td><td>No reports considered</td></tr><tr><td>20 Apr - 24 Apr 2015</td><td>25th Ordinary Session</td><td>Initial Report: Madagascar, Namibia, Rwanda, Zimbabwe</td></tr><tr><td>16 Nov - 19 Nov 2015</td><td>26th Ordinary Session</td><td>Initial Report: Algeria, Congo, Gabon, Lesotho</td></tr><tr><td>2 May - 6 May 2016</td><td>27th Ordinary Session</td><td>No reports considered</td></tr><tr><td>21 Oct - 1 Nov 2016</td><td>28th Ordinary Session</td><td>Initial Report: Cameroon, Eritrea, Ghana</td></tr><tr><td rowspan="2">2 May - 9 May 2017</td><td rowspan="2">29th Ordinary Session</td><td>Initial Report: Chad, Comoros, Ivory Coast</td></tr><tr><td>1st Periodic Report: Tanzania</td></tr><tr><td>6 Dec - 16 Dec 2017</td><td>30th Ordinary Session</td><td>Initial Report: Angola, Sierra Leone</td></tr><tr><td>24 Apr - 4 May 2018</td><td>31st Ordinary Session</td><td>Initial Report: Burkina Faso, Burundi, Malawi, Niger</td></tr><tr><td rowspan="2">12 Nov - 20 Nov 2018</td><td rowspan="2">32nd Ordinary Session</td><td>Initial Report: Zambia</td></tr><tr><td>1st Periodic Report: South Africa</td></tr><tr><td rowspan="2">18 Mar - 28 Mar 2019</td><td rowspan="2">33rd Ordinary Session</td><td>Initial Report: Benin, Eswatini</td></tr><tr><td>1st Periodic Report: Nigeria, Rwanda, Senegal</td></tr><tr><td>25 Nov - 5 Dec 2019</td><td>34th Ordinary Session</td><td>Initial Report: Mauritania</td></tr><tr><td>31 Aug - 8 Sep 2020</td><td>35th Ordinary Session</td><td>2nd Periodic Report: Kenya</td></tr><tr><td>23 Nov - 4 Dec 2020</td><td>36th Ordinary Session</td><td>No reports considered</td></tr><tr><td rowspan="2">15 Mar - 26 Mar 2021</td><td rowspan="2">37th Ordinary Session</td><td>Initial Report: Guinea Bissau</td></tr><tr><td>1st Periodic Report: Guinea</td></tr><tr><td>15 Nov - 26 Nov 2021</td><td>38th Ordinary Session</td><td>1st Periodic Report: Ethiopia</td></tr><tr><td rowspan="2">21 Mar - 1 Apr 2022</td><td rowspan="2">39th Ordinary Session</td><td>Initial Report: Seychelles</td></tr><tr><td>1st Periodic Report: Eritrea, Uganda</td></tr><tr><td>23 Nov - 2 Dec 2022</td><td>40th Ordinary Session</td><td>1st Periodic Report: Republic of Congo</td></tr><tr><td rowspan="3">26 Apr - 6 May 2023</td><td rowspan="3">41st Ordinary Session</td><td>Initial Report: Botswana and Djibouti</td></tr><tr><td>1st Periodic Report: Ivory Coast, Lesotho</td></tr><tr><td>2nd Periodic Report: South Africa</td></tr></tbody></table>
<table><tr><td>8 - 17 Nov 2023</td><td>42nd Ordinary Session</td><td>1st Periodic Report: Benin, Chad<br/>2nd Periodic Report: Senegal</td></tr></table>
# Developing quasi-criminal review in Africa: lessons from the Inter-American Court of Human Rights

Ropafadzo Maphosa*

https://orcid.org/0000-0002-5375-555X

**ABSTRACT:** This article aims to address the pervasive implementation crisis in global human rights systems through an analysis of the measures regional courts take to ensure state compliance with their rulings. Utilising a comparative methodology, this study examines the post-judgment phase efforts of the Inter-American Court of Human Rights (Inter-American Court) and the African Court on Human and Peoples' Rights (African Court) to enforce compliance through innovative remedies. The article begins by exploring the concept of compliance within the context of regional human rights systems, drawing on the effective adjudication framework developed by Helfer and Slaughter and Roach and Budlender's typology of governmental responses to non-compliance. The article then examines the development and procedural elements of quasi-criminal jurisdiction by the Inter-American Court, which includes orders for states to investigate, prosecute, and penalise perpetrators of gross human rights violations, followed by court-monitored compliance. Comparative analysis reveals that both the Inter-American Court and African Court have adopted similar quasi-criminal measures, suggesting a trend towards more robust enforcement mechanisms in response to persistent non-compliance. The findings indicate that while declaratory orders are effective for negligent governments, more assertive remedies are necessary for addressing incompetence and obstinacy. This study concludes that while the African Court has adopted most elements of quasi-criminal review, more still needs to be done for this practice to be as successful as it has been in the Inter-American Court. More specifically, the African Court needs to develop its monitoring practices and the Draft Framework for Reporting and Monitoring Execution of Judgments and other Decisions of the African Court represents a step in the direction for this purpose.

## TITRE ET RÉSUMÉ EN FRANÇAIS

### Renforcer le contrôle quasi-pénal en Afrique : enseignements de la Cour interaméricaine des droits de l'homme

**RÉSUMÉ:** Cet article analyse les réponses des juridictions régionales des droits de l'homme face à la crise persistante de mise en œuvre de leurs décisions par les États, en se concentrant sur les mécanismes développés pour garantir leur exécution. À travers une approche comparative, il examine les pratiques de la Cour interaméricaine des droits de l'homme (Cour interaméricaine) et de la Cour africaine des droits de l'homme et des peuples (Cour africaine), particulièrement dans le cadre des mesures quasi-pénales prises après le prononcé des arrêts. L'étude débute par une exploration du concept de conformité dans les systèmes régionaux de protection des droits de l'homme, en mobilisant le cadre d'adjudication efficace proposé par Helfer et Slaughter, ainsi que la typologie des réponses gouvernementales à la non-conformité établie par Roach et Budlender. Elle s'attarde ensuite sur l'évolution de la compétence quasi-pénale de la Cour interaméricaine, qui englobe des injonctions

<footnote>* LLB, LLM (University of Johannesburg) Researcher, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a centre of the University of Johannesburg; ropafadzom@saifac.org.za</footnote>
adressées aux États en vue d'enquêter, de poursuivre et de sanctionner les auteurs de violations graves des droits humains, sous le contrôle direct de la Cour. L'analyse comparative met en lumière les similitudes entre les mesures quasi-pénales adoptées par la Cour interaméricaine et celles de la Cour africaine, signalant une tendance générale vers des mécanismes de mise en œuvre plus robustes pour faire face au non-respect persistant. Les résultats indiquent que si des ordonnances déclaratives suffisent pour traiter les cas de négligence étatique, des mesures plus contraignantes sont indispensables pour lutter contre l'obstination ou l'incompétence des gouvernements. L'étude conclut que, bien que la Cour africaine ait incorporé plusieurs éléments du contrôle quasi-pénal, des efforts supplémentaires sont nécessaires pour atteindre un niveau d'efficacité comparable à celui de la Cour interaméricaine. En particulier, la Cour africaine doit renforcer ses pratiques de suivi et son projet de cadre pour l'établissement de rapports et le contrôle de l'exécution des arrêts représente une avancée significative dans cette direction.

**KEY WORDS:** non-compliance; Inter-American Court of Human Rights; African Court; quasi-criminal review; Africa

**CONTENT:**

1 Introduction..................................................................................................................253

2 The role of quasi-criminal review in ensuring compliance........................................255

3 Compliance at the Inter-American Court........................................................................258

4 The African human rights system..................................................................................263

4.1 First step of quasi-criminal review: ordering specific measures.................................265

4.2 Second step of quasi-criminal review: supervision of court orders.........................268

5 Lessons from the Inter-American Court ........................................................................273

6 Conclusion.................................................................................................................................274

# 1 INTRODUCTION

A growing body of scholarship has identified an 'implementation crisis' affecting human rights systems across the globe.¹ Researchers provide detailed accounts on the different manifestations of this crisis in response to rulings delivered in Europe, America, and Africa.² These courts are not blind to the ongoing challenge and, as a result, regional courts and commissions are increasingly focused on the post-judgment phase in which they scrutinise how effectively states implement their decisions and probe the reasons for non-implementation.

The persistent non-compliance by states raises fundamental concerns. First, the legitimacy of any court, whether domestic, regional, or international, hinges on the effectiveness of its orders. According to Helfer and Slaughter, effective adjudication involves not only a court's authority to compel a response from defendants, but also its ability to enforce compliance with judgments.³ In short, a court is not effective if it fails to enforce its judgments.

1 VO Ayeni & A von Staden 'Monitoring second-order compliance in the African human rights system' (2022) 6 *African Human Rights Yearbook* 3; C Sandoval, P Leach & R Murray 'Monitoring, cajoling and promoting dialogue: what role for supranational human rights bodies in the implementation of individual decisions?' (2020) 12 *Journal of Human Rights Practice* 71; AV Huneeus 'Compliance with judgments and decisions' in CP Romano, KJ Alter & Y Shany (eds) *Oxford handbook of international adjudication* (2014) 438-59.

2 As above.

3 LR Helfer & AM Slaughter 'Toward a theory of effective supranational adjudication' (1997) 107 *Yale Law Journal* 283.
Confronted with this ongoing challenge, regional courts have
intensified efforts to fortify mechanisms aimed at redressing human
rights violations promptly and effectively. Scholars have noted
significant amendments to the Rules of Procedure by the African
Commission, the adoption of monitoring and reporting processes by
the African Court on Human and Peoples' Rights (African Court),
judicial monitoring initiatives at the Inter-American Court of Human
Rights (Inter-American Court), and the establishment of a compliance
follow-up unit within this Court.<fnref n="4" />

The adoption of these rather intensive, and, arguably invasive,
measures can be explained through the framework developed by Roach
and Budlender, which justifies escalating responses to non-compliance
where governments exhibit inattentiveness, incompetence, or
intransigence.<fnref n="5" /> While this typology was developed with reference to
compliance with domestic judgments, this framework proves pertinent
within the realm of regional human rights systems. Contrary to the
managerial theory posited by Chayes and Chayes, which suggests that
states have a general propensity to comply with international law,<fnref n="6" />
regional contexts underscore the relevance of Roach and Budlender's
typology. According to these authors, while declaratory orders may
suffice for negligent governments, more robust remedies such as
mandatory relief and mandated government reporting to courts
become necessary when governments display incompetence or
obstinacy in implementing judgments.<fnref n="7" />

This typology helps explain innovative remedies such as the
practice of quasi-criminal review which was crafted by the Inter-
American Court. Quasi-criminal review allows regional bodies to make
orders instructing states to initiate investigations, undertake
prosecutions, and impose penalties upon those responsible for gross
human rights violations.<fnref n="8" /> Thereafter, the courts can monitor
compliance through various follow-up mechanisms.<fnref n="9" /> A similar trend is
observable in Africa, suggesting that quasi-criminal jurisdiction of
supranational courts emerges as a remedial response to states' non-
compliance with court rulings.

This article provides an in-depth analysis of this innovative remedy,
juxtaposing its application by the Inter-American Court and the African
Court. The first section explores the concept of quasi-criminal review
and how it facilitates compliance with regional court judgments. This is
followed by an examination of the development of quasi-criminal

<footnote n="4">4 R Murray 'Addressing the implementation crisis: securing reparation and righting wrongs' (2020) 12 *Journal of Human Rights Practice* 2.</footnote>

<footnote n="5">5 K Roach & G Budlender 'Mandatory relief and supervisory jurisdiction: when is it appropriate, just and equitable?' (2005) 122 *South African Law Journal* 325.</footnote>

<footnote n="6">6 A Chayes & AH Chayes *The new sovereignty: compliance with international regulatory agreements* (1995) 3.</footnote>

<footnote n="7">7 Roach & Budlender (n 5) 327.</footnote>

<footnote n="8">8 AV Huneeus 'International criminal law by other means: the quasi-criminal jurisdiction of the human rights courts' (2013) 107 *American Journal of International Law* 2.</footnote>

<footnote n="9">9 As above.</footnote>
jurisdiction by the Inter-American Court, with a focus on specific
procedural elements. Subsequently, the article investigates whether
recent practices within the African human rights system can be
classified as quasi-criminal review, with reference to the African Court's
jurisprudence.

2 THE ROLE OF QUASI-CRIMINAL REVIEW IN ENSURING COMPLIANCE

The handing down of rulings by supranational bodies can significantly impact human rights practices by drawing attention to alleged human rights violations, honouring victims, and advancing human rights jurisprudence.<fnref n="10" /> However, the most tangible effect of these rulings is seen in states' compliance. By adhering to court decisions, states offer remedies to individual victims and implement structural and systemic changes to prevent future violations. Full compliance with these rulings exemplifies international human rights law at its most effective.<fnref n="11" />

What constitutes compliance varies on a case-by-case basis. Although there is no universal definition for 'compliance', and most international law instruments do not provide a concise definition, the UN Charter makes reference to 'non-compliance' which is defined as a state party's failure to perform the obligations assigned to it through the International Court of Justice's (ICJ) orders.<fnref n="12" /> Leading voices in international law scholarship have offered more or less the same definition for the term 'compliance'. Raustiala and Slaughter define compliance as 'a state of conformity or identity between an actor's behaviour and a specified rule'.<fnref n="13" /> Similarly, Huneeus views compliance as a relational concept referring to a correspondence between a ruling's demands and the behaviour of the parties subject to the ruling.<fnref n="14" /> Andreas von Staden views compliance as the conformity of behaviour with what is required or prohibited based on an obligation rooted in a norm, a decision or another normative pronouncement.<fnref n="15" />

It is easy to confuse compliance with ‘implementation’ and
sometimes, the terms are used synonymously. However,
implementation refers to the process of taking individual or collective
measures – such as legislation, judicial decisions, administrative
actions, executive decrees, or other steps – to enforce an adverse

<footnote n="10">10 C Hillebrecht *Domestic politics and international human rights tribunals* (2013) 11.</footnote>

<footnote n="11">11 As above.</footnote>

<footnote n="12">12 Art 94(2), United Nations Charter.</footnote>

<footnote n="13">13 K Raustiala and AM Slaughter ‘International law, international relations and compliance’ in W Carlsnaes, T Risse & BA Simmons (eds) *Handbook of international relations* (2002) 539.</footnote>

<footnote n="14">14 AV Huneeus ‘Compliance with judgments and decisions’ in Romano, Alter & Shany (n 1) 443.</footnote>

<footnote n="15">15 A von Staden ‘Implementation and compliance’ in R Murray & D Long (eds) *Research handbook on implementation of human rights in practice* (2022) 22.</footnote>
decision or judgment.<fnref n="16" /> Thus, implementing the decisions of courts or tribunals typically involves a blend of actions.

Navarro argues that more focus should be placed on implementation rather than compliance as the latter simply indicates that the state's laws and practices align with the requirements of a judgment, while implementation involves domestic actors recognising, incorporating, and taking ownership of the judgment.<fnref n="17" /> In Navarro's view, compliance does not adequately capture all the aspects related to a judgment's effectiveness, such as delayed or partial compliance as well as any innovative measures adopted by courts and their reasons for doing so.<fnref n="18" />

In my view, it would be prudent not to create a hierarchy between implementation and compliance for two reasons. On the one hand, as von Staden argues, implementation is not necessarily an absolute condition for compliance, as compliance may occur without the implementation of any new measures.<fnref n="19" /> On the other hand, implementation can be viewed as a process entailing a series of steps taken to achieve an outcome (compliance). Monitoring bodies examine whether the measures implemented constitute partial compliance, full compliance or non-compliance.<fnref n="20" /> The distinction ultimately lies on the degree of compliance by a state: partial compliance refers to a situation where a state complies with some but not all of a court's orders, if a state complies with all of the orders then that qualifies as full compliance, while non-compliance refers to cases where a state does not comply with any of the court's orders.

It is argued that a court's authority to compel litigants to adhere to its judgments partly derives from its capacity to leverage the state's coercive power.<fnref n="21" /> For international courts and tribunals, leveraging state power to directly enforce compliance is challenging because their jurisdiction is limited to determining whether a state is internationally responsible for certain violations.<fnref n="22" /> As a result, they can only implement their decisions through member states. In contrast, supranational bodies, such as regional human rights courts, have the authority to issue decisions that are directly binding on member states, as well as on public and private enterprises and individuals within those states.<fnref n="23" />

<footnote n="16">16 Von Staden (n 15) 18.</footnote>

<footnote n="17">17 GCB Navarro 'Effectiveness of international courts: the impact of the Inter-American human rights system' in A von Bogdandy and others (eds) *The Impact of the Inter-American human rights system: transformations on the ground* (2024) 140.</footnote>

<footnote n="18">18 As above.</footnote>

<footnote n="19">19 Von Staden (n 15) 22.</footnote>

<footnote n="20">20 RC Liwanga 'From commitment to compliance: enforceability of remedial orders of African human rights bodies' (2015) 41 *Brooklyn Journal of International Law* 99, 133.</footnote>

<footnote n="21">21 Helfer & Slaughter (n 3) 284.</footnote>

<footnote n="22">22 Huneeus (n 8) 2.</footnote>

<footnote n="23">23 Helfer & Slaughter (n 3) 288.</footnote>
Since supranationalism recognises that states are composed of
governments interacting with a wide array of non-state entities,
corporations, individuals and organizations, there is a direct
connection between supranational institutions and private parties
which allows these tribunals to form direct or indirect relationships
with various branches of domestic governments.<fnref n="24" /> Through these
relationships, a supranational tribunal can leverage the power of
domestic governments to enforce its rulings, similar to how domestic
court orders are enforced. Hillebrecht argues that state compliance
with international human rights tribunals' rulings is fundamentally a
domestic affair.<fnref n="25" /> Even human rights tribunals with extensive oversight
and enforcement capacities rely entirely on state actors and domestic
political forces for compliance.

In handing down a judgment, the government of the state in
question, usually the executive, is addressed. Therefore, the executive is
the branch that is ultimately responsible for compliance.<fnref n="26" /> Once a
ruling has been issued, the executive typically delegates the tasks
necessary for compliance to various state entities.<fnref n="27" /> Using Niger as an
illustration, the Koraou judgment issued by the ECOWAS Community
Court of Justice (ECCJ) provides a clear example of executive
involvement in the implementation of a regional court decision.
Despite the fact that Niger had criminalised slavery in its penal code
before the Koraou case, an estimated 43,000 people were still believed
to be enslaved in Niger as of 2010.<fnref n="28" />

In response to the ECCJ's finding that the Government of Niger
failed to prevent violations committed by third parties, the Ministry of
Justice issued a circular instructing judges to handle cases –
particularly those related to slavery – with greater diligence.<fnref n="29" /> It has
been argued that this approach alone was insufficient. A more
comprehensive strategy was required, involving policy measures to
ensure coordinated efforts across various state institutions in the
enforcement of anti-slavery provisions.<fnref n="30" />

In the absence of full compliance with its judgments, the
effectiveness of a supranational tribunal is questionable. This is
because the success of an institution of this nature is based on its ability
to ensure compliance with its judgments by persuading domestic
government institutions, both directly and through pressure from
private litigants, to use their authority in its favour.<fnref n="31" />

<footnote n="24">24 As above.</footnote>

<footnote n="25">25 Hillebrecht (n 10) 3.</footnote>

<footnote n="26">26 Hillebrecht (n 10) 22.</footnote>

<footnote n="27">27 E Asaala 'Assessing the mechanisms and framework of implementation of decisions of the African Court on Human and Peoples' Rights fifteen years later' (2021) *De Jure Law Journal* 449.</footnote>

<footnote n="28">28 HS Adjolohoun 'The ECOWAS Court as a human rights promoter – assessing five years' impact of the Koraou slavery judgment' (2013) 31 *Netherlands Quarterly of Human Rights* 352.</footnote>

<footnote n="29">29 As above.</footnote>

<footnote n="30">30 Adjolohoun (n 28) 353.</footnote>

<footnote n="31">31 Helfer & Slaughter (n 3) 290.</footnote>
Non-compliance fuels remedial innovation. Taylor explains that where positive action is required to implement court decisions, non-compliance erodes respect for the rule of law and constitutes a systemic threat to human rights.<fnref n="32" /> Furthermore, non-compliance weakens the legitimacy of the supranational body in question. To avoid this, court orders have become more precise and prescriptive, eventually leading to the implementation of novel remedial methods to achieve full compliance.<fnref n="33" />

Supranational bodies have started to realise the extent to which other government institutions can play a role in integrating international law, including rulings from international human rights tribunals, into domestic jurisprudence through investigations, litigation, and the establishment of legal precedents. For instance, an independent judiciary capable of administering reparations, conducting investigations, and issuing rulings is arguably the most valuable asset for ensuring compliance with international human rights law.

Bearing in mind that judiciaries can expedite the compliance process by offering the necessary legal channels and expertise to interpret and implement their rulings,<fnref n="34" /> human rights courts are increasingly relying on quasi-criminal review.<fnref n="35" /> This practice enables regional courts to address challenges in assessing state compliance. By retaining jurisdiction after issuing a judgment, the courts can identify the measures states have implemented regarding specific proclamations. This is facilitated by the courts' ability to request follow-up information and reports from various actors, including civil society. Additionally, as the required scope and depth of compliance may change over time,<fnref n="36" /> quasi-criminal review allows the courts to maintain an ongoing dialogue with the involved parties, thereby ensuring continuous assessment and adaptation.

## 3 COMPLIANCE AT THE INTER-AMERICAN COURT

The Inter-American Court blazed a new trail with its innovative response to persistent non-compliance by states. To date, it has overseen domestic prosecutions in more than fifty instances. In 1979, the American Convention on Human Rights came into force,<fnref n="37" /> and through it, the Inter-American Court, which has the jurisdiction to hear all cases concerning the interpretation and application of the provisions

<footnote n="32">32 H Taylor 'Forcing the Court's remedial hand: non-compliance as a catalyst for remedial innovation' (2019) 9 *Constitutional Court Review* 250.</footnote>

<footnote n="33">33 As above.</footnote>

<footnote n="34">34 Hillebrecht (n 10) 22.</footnote>

<footnote n="35">35 Huneeus (n 8) 5.</footnote>

<footnote n="36">36 Von Staden (n 15) 27.</footnote>

<footnote n="37">37 Organization of American States (OAS), American Convention on Human Rights, 'Pact of San Jose', Costa Rica, 22 November 1969.</footnote>
of this Convention was created.<fnref n="38" /> The Court has advisory as well as contentious jurisdiction. However, individual petitions must first go via the Inter-American Commission before being submitted to the Court.<fnref n="39" />

In addition, the Inter-American Commission can refer cases to the Court if 'the State has not complied with the recommendations of the report approved in accordance with article 50 of the American Convention.'<fnref n="40" /> The Commission regularly refers cases to the Court, even where it has given a state various opportunities to implement its recommendations.

At the time that the Court was established, the American region was plagued by a culture of impunity, which was described in the *White Van* case as a 'the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention'.<fnref n="41" /> It is this culture of impunity, the dynamics of human rights violations in America, and the role of the state in the commission of such violations, that has shaped the remedial practices of the Inter-American Court.<fnref n="42" />

Tasked with overseeing a body of authoritarian states, the Inter-American Court has taken a more activist stand and forged closer relations with civil society groups and the victims. Around 1996, the Inter-American Court started issuing orders for states to prosecute individuals for specific human rights violations.<fnref n="43" /> Subsequently, it intensified its oversight of these prosecutions to ensure they met human rights standards. The Court also initiated ongoing dialogues involving the state, victims, and the Commission to address obstacles encountered in prosecuting particular cases.<fnref n="44" />

The Court has developed its quasi-criminal jurisdiction in such a way that it often retains supervisory jurisdiction over its orders. Since the American Convention does not contain explicit rules instructing the Inter-American Court on how to monitor implementation, the Court has taken advantage of this legal lacuna to set up various procedures such as ongoing communication with victims, states and the Commission.<fnref n="45" /> Jurisdiction over a case is retained until the Court is

<footnote n="38">38 Art 62(3) of the American Convention on Human Rights, 1969.</footnote>

<footnote n="39">39 Art 46 of the American Convention states that 'admission by the Commission of a petition or communication lodged in accordance with arts 44 or 45 shall be a necessary requisite for its examination by the Court, except in cases where the provisions of Article 61 are applicable'. This means before an individual or their representatives can bring a case before the Inter-American Court of Human Rights, they must first submit a petition to the Inter-American Commission on Human Rights, and the Commission must admit the petition for it to be examined by the Court.</footnote>

<footnote n="40">40 Art 44 of the American Convention.</footnote>

<footnote n="41">41 *White Van (Paniagua Morales et. al.) Case (Guatemala)* (1998), Merits, Inter-Am. Ct. H.R. (Ser. C) No 37, at para 173.</footnote>

<footnote n="42">42 Huneeus (n 8) 11.</footnote>

<footnote n="43">43 Velásquez Rodríguez C=case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), Inter-American Court of Human Rights (IACrtHR), 29 July 1988.</footnote>

<footnote n="44">44 Huneeus (n 8) 12.</footnote>

<footnote n="45">45 Sandoval, Leach & Murray (n 1) 74.</footnote>
satisfied that all its various demands have been met. Sometimes the
Court's judgments highlight the steps that must be taken to comply
with its orders. Other tools used by the Court include implementation
hearings (both private and public), in-country visits and provisional
measures.<fnref n="46" />

The application of the Inter-American Court's quasi-criminal
review first became evident in the landmark *Velásquez-Rodríguez*
case.<fnref n="47" /> The facts concerned the arrest and unresolved disappearance of
a Honduran student activist. The circumstances surrounding the
disappearance of the individual in question were not definitively
determined. Therefore, it was not clear whether the disappearance was
caused directly by state officials or with their implicit consent.
However, it was acknowledged that the act occurred within the context
of the then-common state practice of enforced disappearances. In a
complaint submitted by the Inter-American Commission to the Court,
it was argued that the state had violated numerous rights including the
right to life, the right to humane treatment (in relation to allegations of
torture), and personal liberty.<fnref n="48" /> The Court confirmed these violations
and asserted that Article 1 of the American Convention places a duty on
states parties to

organize the governmental apparatus and, in general, all the structures
through which public power is exercised, so that they are capable of
juridically ensuring the free and full enjoyment of human rights. As a
consequence of this obligation, the States must prevent, investigate and
punish any violation of the rights recognized by the Convention and,
moreover, if possible, attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation. [...] The State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, impose the appropriate punishment and ensure the
victim adequate compensation.<fnref n="49" />

In short, the Court translated article 1(1) of the American Convention as
an obligation on states to prevent, investigate and punish any violation
of the rights in the Convention.<fnref n="50" /> In the *Velásquez-Rodríguez* case, the
Court required Honduras to punish the offenders to ensure that
Manfredo Velásquez could exercise his human rights freely and fully.
This approach was confirmed in the *Bámaca Velásquez* case, where the
Court held that if a state party fails to punish those responsible for

<footnote n="46">46 Sandoval, Leach & Murray (n 1) 77.</footnote>

<footnote n="47">47 *Velásquez Rodríguez* Case (n 43).</footnote>

<footnote n="48">48 *Velásquez Rodríguez* case (n 43) para 2.</footnote>

<footnote n="49">49 *Velásquez Rodríguez* case (n 43) para 166.</footnote>

<footnote n="50">50 According to the Court (194) 'An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.'</footnote>
human rights abuses, it violates its obligation to respect the victim's rights under the Convention.<fnref n="51" />

The Court regards punishment as a form of retrospective protection that is owed in each individual case. It is considered a means to secure the victim's right to life and liberty, and it is not limited to prevention. In the *Velásquez-Rodríguez* case, the Court found a violation of Manfredo Velásquez's rights, not because of the failure to prosecute prior cases and prevent his disappearance, but because of the failure to investigate and punish his abusers.<fnref n="52" /> Therefore, the Court considers punishment an essential measure for protecting the rights of individual victims of human rights abuses.

Following the precedent established in the *Velasquez Rodríguez* case, the Inter-American Court has solidified its quasi-criminal jurisdiction in subsequent cases, by expanding its remedial powers beyond monetary compensation and mandating states to initiate investigations and prosecutions for certain violations through a progressive interpretation of the American Convention.<fnref n="53" /> In *Vargas Areco v Paraguay*,<fnref n="54" /> the case involved the murder of 15-year-old Gerardo Vargas Areco following his arrest for failing to return to his military post. The Court ordered the state to conduct a thorough and effective investigation through civilian authorities, rather than military ones, in order to identify, prosecute, and punish all those responsible for Vargas Areco's death, including perpetrators, instigators, and others involved, with the goal of combating impunity. In *Garibaldi v Brazil*, Resolution Monitoring Compliance, IACtHR (20 February 2012),<fnref n="55" /> the case concerned the state's failure to investigate the murder of land rights activists during an extrajudicial eviction of landless workers in 1998. While the Court acknowledged that the state had complied with its 2009 order to provide compensation, it noted that Brazil had not fulfilled its obligation to conduct an investigation or initiate criminal proceedings against those responsible for the violations.

Consequently, the jurisprudence of the Inter-American Court has become the common foundation for promoting and safeguarding human rights in the region.<fnref n="56" />

However, this means the Court is entangled with a particular state for years while extensive investigations are conducted and the Inter-American Court has acknowledged the limited scope of its authority in reviewing domestic criminal proceedings. It recognises that it is the

<footnote n="51">51 *Bámaca Velásquez v Guatemala*, 2000 Inter-Am. Ct. H.R. (ser. C) No 70, (25 November 2000) para 197.</footnote>

<footnote n="52">52 *Velásquez Rodríguez* case (n 43) para 176.</footnote>

<footnote n="53">53 Huneeus (n 8) 12.</footnote>

<footnote n="54">54 I/A Court H.R., *Case of Vargas-Areco v Paraguay*, Merits, Reparations, and Costs, Judgment of 26 September 2006. Series C No. 155, at paras 111–134.</footnote>

<footnote n="55">55 *Garibaldi v Brazil*, Resolution Monitoring Compliance, IACtHR (20 February 2012),</footnote>

<footnote n="56">56 SH Carrasco 'The Inter-American Court of Human Rights and the state response to the prosecution of crimes against humanity in the Americas: a critical assessment' LLM Dissertation, University of Ottawa, 2010 13.</footnote>
responsibility of national courts to ensure that criminal proceedings are conducted in a manner that is consistent with international human rights standards. In the case of *Nogueira de Carvalho et al v Brazil*,<fnref n="57" /> the Court emphasised that its role is not to dictate specific methods or procedures for investigating and adjudicating a particular case. Instead, the Court's function is to evaluate whether the actions taken by the state to comply with its obligations under articles 8 and 25 of the American Convention. Therefore, the Court's role is not to replace national jurisdictions, but to ensure that states comply with their international obligations.

To carry out this duty effectively, the Inter-American Court enables dialogue by holding hearings with involved parties.<fnref n="58" /> This is imperative for states to be successful in implementing court orders. Dialogue should be understood as a reviewing process employed by human rights bodies to monitor the implementation of their decisions. This process involves the use of mechanisms that encourage parties to search for ways of moving implementation forward, either between themselves or with the direct help of the monitoring body.

Ayeni and Von Staden highlight that human rights courts can achieve better compliance by engaging in dialogic monitoring, such as setting deadlines, holding public hearings with various actors, and issuing follow-up decisions based on what they learn on the ground.<fnref n="59" /> The idea is that these practices promote dialogue among public authorities and civil society actors, leading to positive outcomes like improving coordination among disconnected state agencies. The use of dialogic tools is encouraged in the monitoring phase because they allow the Court to learn more details of the prosecution through supervision, and thus become more specific and realistic about what the state must do to satisfy its orders and meet the needs of the victims.<fnref n="60" />

Both the Court and the Commission have the authority to call implementation hearings, however the Court more frequently relies on this mechanism in cases with long delays. Parties to a case may also ask for such a hearing and during these proceedings the Court will entertain submissions, ask relevant questions and make suggestions, often with compliance schedules.<fnref n="61" /> For instance, in the *Awas Tingni* case,<fnref n="62" /> the Court held a hearing where a work plan was drafted and carried out within six months. This is one of many instances where the Court's creative dialogue resulted in successful implementation.

In cases of non-compliance, the Inter-American Court can either issue recommendations,<fnref n="63" /> or refer to the General Assembly of the

<footnote n="57">57 *Case of Nogueira de Carvalho et al. v. Brazil*, Preliminary Objections and Merits, 2006 Inter-Am. Ct. H.R. (ser. C) No. 161, (28 November 2006) para. 80.</footnote>

<footnote n="58">58 Huneeus (n 8) 1.</footnote>

<footnote n="59">59 Ayeni & Von Staden (n 1) 6-7.</footnote>

<footnote n="60">60 Huneeus (n 8) 12.</footnote>

<footnote n="61">61 Sandoval, Leach & Murray (n 1) 81.</footnote>

<footnote n="62">62 *Mayagna (Sumo) Awas Tingni Community v Nicaragua*, Monitoring Compliance with Judgment, Order of the Court, 3 April 2009.</footnote>

<footnote n="63">63 Art 65 of the American Convention</footnote>
OAS.<fnref n="64" /> The referral measure has thus far been employed where state parties were obstinate, such as in the cases of Venezuela and Trinidad and Tobago.<fnref n="65" /> Venezuela's obstinance was brought up in the case of *El Amparo v Venezuela*,<fnref n="66" /> which concerned the 1988 killing of 14 fishermen by military and police forces during an operation. The Court emphasised that Venezuela was not fulfilling its duty to inform the Court about the actions taken to comply with the 1995 judgment, highlighting the state's failure to provide sufficient updates on its efforts to address the violations. In these instances, the Court considered it necessary to 'name and shame' intractable states within a political context involving other states.<fnref n="67" /> Nevertheless, the OAS General Assembly has not taken additional steps beyond this, perhaps because, as a political body, it does not have the benefit of neutrality that technical bodies such as the European Department for the Execution of Judgments carry.<fnref n="68" />

## 4 THE AFRICAN HUMAN RIGHTS SYSTEM

The African region's long struggle with human rights can be traced back to its history of oppression and exploitation at the hands of colonialists.<fnref n="69" /> Following the demise of the colonial system, there was an increased push to establish a regional human rights regime in Africa. For instance, the architects of the African Charter did so in response to the United Nations General Assembly's call for the establishment of a regional human rights mechanism.<fnref n="70" />

As a relatively young court, the African Court faces implementation challenges similar to those of other supranational bodies. The reluctance of state leaders to abide by the Court's orders can be traced to its establishment which took decades due to insufficient political will.<fnref n="71" /> There was insufficient support for a human rights court due to the claim that such a mechanism was 'alien' to African justice, which emphasises restorative over retributive forms of justice.<fnref n="72" /> At the time of the Charter's adoption, adversarial and adjudicative procedures were perceived as 'Western' methods and precluded in favour of the

<footnote n="64">64 As above.</footnote>

<footnote n="65">65 Sandoval, Leach & Murray (n 1) 86. It is worth noting that Venezuela presented an instrument of denunciation of the American Convention on Human Rights in 2012 and Trinidad & Tobago presented a denunciation in 1998.</footnote>

<footnote n="66">66 *Case of El Amparo v Venezuela*, Resolution Monitoring Compliance, IACtHR (20 February 2012).</footnote>

<footnote n="67">67 As above.</footnote>

<footnote n="68">68 As above.</footnote>

<footnote n="69">69 M Ssenyonjo *The African regional human rights system: 30 years after the African Charter on Human and People's Rights* (2012) 5.</footnote>

<footnote n="70">70 G Bekker 'The African Court on Human and Peoples' Rights: safeguarding the interests of African states' (2007) 51 *Journal of African Law* 152.</footnote>

<footnote n="71">71 NJ Udombana 'Toward the African Court on Human and Peoples' Rights: better late than never' (2000) 3 *Yale Human Rights and Development Law Journal* 75.</footnote>

<footnote n="72">72 Ssenyonjo (n 69) 9.</footnote>
diplomatic and bilateral settlement of disputes.<fnref n="73" /> As a result, the architects of the African Charter left out a provision for the creation of a human rights court because they were of the view that state leaders would be reluctant to ratify the Charter if it included a provision for compulsory judicial settlement.<fnref n="74" />

Scholars argue that African states were, in fact, not prepared to accept judicial scrutiny for human rights violations as this would likely interfere in their internal affairs at a time where state sovereignty was highly prioritised.<fnref n="75" /> The absence of a human rights court to hand down legally binding judgments made the African system diverge from the approach taken in other regional human rights conventions.

Unlike the European and American Conventions, the African Charter opted for a quasi-judicial instead of judicial enforcement system when it solely established an African Commission on Human and Peoples' Rights (African Commission). The African Commission is tasked with advancing, safeguarding, and interpreting the provisions of the African Charter, albeit with structural and normative inefficiencies.<fnref n="76" />

The Commission is only empowered to make non-binding recommendations to the relevant parties.<fnref n="77" /> Hence, some academic commentators have described this body as 'toothless' as far as the protection and promotion of fundamental rights is concerned.<fnref n="78" /> Cognisant of this perception, the Commission goes the extra mile in monitoring the implementation of its decisions. Using an established state reporting process, it has been able to follow up with states on individual orders.<fnref n="79" /> Thus, other authors recognise that through the exercise of quasi-criminal review, the Commission has been able to establish when a state is responsible for Charter violations that amount to international crimes, and accordingly call for investigations and/or prosecutions by way of communications.<fnref n="80" />

After years of relying on the African Commission, state leaders finally came together in 1998 and adopted the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights.<fnref n="81" /> However, the African Court only became operational in 2006 because states recognised that it would not be viable for the AU to operate two judicial organs, namely

<footnote n="73">73 Udombana (n 71) 74.</footnote>

<footnote n="74">74 MA Plagis & L Riemer 'From context to content of human rights: the drafting history of the African Charter on Human and Peoples' Rights and the enigma of article 7' (2020) 23 *Journal of the History of International Law* 556.</footnote>

<footnote n="75">75 As above.</footnote>

<footnote n="76">76 See art 45 of the African Charter.</footnote>

<footnote n="77">77 Art 53 of the African Charter.</footnote>

<footnote n="78">78 R Murray and others 'Monitoring implementation of the decisions and judgments of the African Commission and Court on Human and Peoples' Rights' (2017) 1 *African Human Rights Yearbook* 151.</footnote>

<footnote n="79">79 Murray and others (n 78) 77.</footnote>

<footnote n="80">80 Huneeus (n 8) 1-2.</footnote>

<footnote n="81">81 The Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court of Human and People's Rights, 10 June 1998.</footnote>
the African Court and the African Court of Justice (ACJ) as envisaged by article 5 and 8 of the AU Constitutive Act.<fnref n="82" /> According to these provisions, the ACJ was to be the principal judicial organ of the AU with the power to, amongst other things, interpret and apply all of the AU's treaties and other subsidiary instruments, and all agreements entered into by state parties. Although there were suggestions to merge the two judicial institutions, it was decided that the African Court would be in operation until the merger.<fnref n="83" />

**4.1 First step of quasi-criminal review: ordering specific measures**

To strengthen the enforcement mechanisms within the African Human Rights system, the African Court's decisions are final and not subject to appeal or political confirmation by any AU body.<fnref n="84" /> The binding nature of the Court's decisions is confirmed under article 30 of the Protocol, which provides that states parties must guarantee the execution of the Court's judgments within the stipulated time frame. Rule 72(2) of the Court's Rules also makes it clear that court orders are enforceable against state parties.<fnref n="85" />

The Protocol of the Court provides a clear legal basis for the provision of remedies, allowing the Court to issue appropriate orders to remedy violations. According to article 27(1), once the Court finds that a human rights violation has taken place, it has the authority to order suitable remedial actions, including the payment of just compensation or reparations. I argue that this provision can be interpreted to make orders very specific, for example that the Court can request the state to institute a prosecution or an investigation where it has failed to do so. To this end, article 27(1) can be read in line with article 7 of the African Charter which enshrines the right to a fair trial. State parties to the African Charter are required to guarantee, both legally and practically, that victims of human rights violations enshrined in the African Charter have access to and receive redress.<fnref n="86" />

This approach was followed by the Court in 2015, when the African Court ordered an investigation into crimes committed against journalists in *Norbert Zongo and Others v Burkina Faso (Zongo*

<footnote n="82">82 R Murray 'The human rights jurisdiction of the African Court of Justice and Human and Peoples' Rights' in CC Jalloh, KM Clarke & CO Nmehielle (eds) *The African Court of Justice and Human and Peoples' Rights in context: development and challenges* (2022) 965.</footnote>

<footnote n="83">83 As above.</footnote>

<footnote n="84">84 See art 1 of the Protocol on the Statute of the African Court of Justice and Human Rights.</footnote>

<footnote n="85">85 African Court on Human and Peoples' Rights, *Rules of the Court*, https://www.african-court.org/en/images/Basic%20Documents/Rules_of_Court_-_25_Sepember_2020.pdf (accessed 25 October 2024).</footnote>

<footnote n="86">86 African Commission on Human and Peoples' Rights General Comment 4 on the African Charter on Human and Peoples' Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (art 5).</footnote>
case).<fnref n="87" /> The Court declared that, under article 7 of the African Charter, Burkina Faso was obligated to make every necessary effort to search for, prosecute, and bring to trial the perpetrators of crimes such as murder. According to the facts, Norbert Zongo, an investigative journalist in Burkina Faso, his two collaborators and his younger brother were assassinated in 1998.<fnref n="88" /> Their burnt bodies were later found in their car. The Burkinabe judicial system launched an investigation into the assassination, which was believed to be connected to Zongo's investigations into political, economic, and social scandals.<fnref n="89" /> Although an Independent Commission of Enquiry was established and a suspect charged in 2001, the case was dismissed in July 2006 due to lack of evidence. Subsequent appeals by the Zongo family were unsuccessful, leading to the abandonment of the case.<fnref n="90" />

In this case, the African Court determined that the Burkina Faso government failed to uphold its duty of due diligence because no trial had been held in more than fifteen years due to a lack of evidence, and ordered that the investigation be reopened.<fnref n="91" /> Relying on existing African Charter rights, specifically the right to a fair trial, the African Court ordered the re-opening of the investigation and publication of the final judgment.<fnref n="92" /> The Burkina Faso government was also ordered to compensate the victims and make amendments to its defamation laws. Burkina Faso was quick to implement these measures: compensation was paid within the six-month time limit; legislation was amended; and the responsible individuals were prosecuted following extensive investigations; finally, the judgment was published in the official gazette and national newspaper.<fnref n="93" />

In Lohé Issa Konaté v Burkina Faso,<fnref n="94" /> the Court delivered a watershed judgment pertaining to the freedom of the press. Here, the Court overturned the conviction of a journalist who faced harsh criminal penalties levied by Burkina Faso after a conviction on defamation charges. The charges in question emanated from several newspaper articles penned by the applicant, Lohé Issa Konaté, in which he exposed alleged corruption by a state prosecutor.<fnref n="95" /> The African Court held that the conviction was a disproportionate interference with the applicant's guaranteed rights to freedom of expression.<fnref n="96" />

<footnote n="87">87 *Beneficiaries of late Norbert Zongo and others v Burkina Faso*, Admissibility and merits, Application No 013/2011, IHRL 4117 (ACtHPR 2014), 28 March 2014, African Court on Human and Peoples' Rights (Zongo).</footnote>

<footnote n="88">88 *Beneficiaries of Late Norbert Zongo and others v Burkina Faso* Application 013/2011 Ruling (Preliminary Objections) paras 2-6.</footnote>

<footnote n="89">89 *Zongo* (n 87) para 16.</footnote>

<footnote n="90">90 As above.</footnote>

<footnote n="91">91 *Zongo* (n 87) at paras 152-156.</footnote>

<footnote n="92">92 *Zongo* (n 87) para 199.</footnote>

<footnote n="93">93 R Murray 'Implementation of the judgments of the African Court on Human and Peoples' Rights' (2019) *The ACtHPR Monitor* https://www.acthrmonitor.org/implementation-of-the-judgments-of-the-african-court-on-human-and-peoples-rights/ (accessed 25 October 2024).</footnote>

<footnote n="94">94 *Lohé Issa Konaté v Burkina Faso* App 4/2013.</footnote>

<footnote n="95">95 *Konaté* (n 94) para 3.</footnote>

<footnote n="96">96 *Konaté* (n 94) paras 163-164.</footnote>
Furthermore, the Court ordered Burkina Faso to amend its defamation laws in line with international standards by removing criminal penalties for acts of defamation.<fnref n="97" /> The state was also ordered to adapt its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality.<fnref n="98" />

In *Alex Thomas v Tanzania (Thomas case)*,<fnref n="99" /> Alex Thomas, a Tanzanian national, claimed that his trial and subsequent conviction for armed robbery were marred by procedural irregularities and human rights violations.<fnref n="100" /> The African Court found several violations of Thomas's rights and ordered the Tanzanian government to take all necessary measures to rectify the injustices, precluding 'the reopening of the defence case and retrial of the applicant'.<fnref n="101" /> The exception was intended to prevent any further prejudice to the Applicant who had already served a significant portion of his 30-year sentence.<fnref n="102" /> Therefore, the Court clarified that one of the necessary measures would be his release from prison.

In *Association pour la Protection des Droits de l'Homme (APDH) v Côte d'Ivoire (APDH case)*,<fnref n="103" /> an Ivorian human rights organisation brought a case against the government of Côte d'Ivoire, contending that certain candidates, particularly the President of Côte d'Ivoire, were disproportionately represented on the Independent Electoral Commission (IEC). This over-representation came at the expense of independent candidates and those from the opposition, contravening the state's obligation to protect the right of its citizens to equality and equal protection of the law.<fnref n="104" /> The African Court ordered Côte d'Ivoire to amend the legal framework governing the IEC to ensure its independence and impartiality and to investigate any electoral irregularities and human rights abuses.<fnref n="105" />

What becomes clear from these cases is that the African Court embraces a creative interpretation of its mandate. Similar to the Inter-American Court, the African Court is increasingly requiring specific actions from states. In several instances, the Court has also mandated prosecutorial action as a remedy. Just as the Inter-American Court bases its orders to investigate and punish on the right to a fair trial enshrined in the American Convention, the African Court is doing the same by invoking article 7 of the African Charter.

<footnote n="97">97 Konaté (n 94) paras 176 (8).</footnote>

<footnote n="98">98 As above.</footnote>

<footnote n="99">99 *Alex Thomas v Tanzania* App 5/2013.</footnote>

<footnote n="100">100 *Thomas* case (n 99) para 4.</footnote>

<footnote n="101">101 *Thomas* case (n 99) para 4, order ix.</footnote>

<footnote n="102">102 *Alex Thomas v Tanzania* App 1 2017 – Interpretation of Judgment of 20 November 2015 par 42.</footnote>

<footnote n="103">103 *Association pour la Protection des Droits de l'Homme (APDH) v Côte d'Ivoire*, App 1/2014.</footnote>

<footnote n="104">104 Art 3 of the African Charter.</footnote>

<footnote n="105">105 *APDH* (n 103) Order 7 of the Judgment.</footnote>
## 4.2 Second step of quasi-criminal review: supervision of court orders

From the above discussion, it is evident that quasi-criminal review is not a novel concept within the African human rights system. Despite making a number of direct orders as highlighted in the preceding paragraphs, the African Court has elected a 'light-touch approach' in monitoring states' compliance with its judgments.<fnref n="106" /> It is my view that much more needs to be done when it comes to the subsequent step – supervision of court orders. To illustrate, I refer to the three features of this phase that Huneeus considers integral as applied by the Inter-American Court.<fnref n="107" /> First, the Court occasionally engages deeply with the criminal process – it offers detailed opinions and directs the state on specific lines of investigation to pursue, names individuals who should be investigated, and suggests analytical connections between cases.<fnref n="108" /> It further imposes both substantive and procedural requirements.<fnref n="109" />

While it is possible for states to apply to the Court for the interpretation of a judgment procedure so that they receive clarification where necessary,<fnref n="110" /> the African Court leaves the manner of implementation to the state. This was confirmed in *APDH v Côte d'Ivoire*, where the Respondent state was ordered to submit a report on the implementation of the Court's decision within a reasonable time (not exceeding one year).<fnref n="111" /> The Ivorian Parliament passed an executive bill designed to comply with the *APDH* judgment by changing the composition of the IEC.<fnref n="112" /> However, on 10 September 2019, the African Court received a new application in *Suy Bi Gohore & 8 Others v Côte d'Ivoire (Suy Bi Gohore case)*,<fnref n="113" /> contending that the new Electoral Commission law did not meet the standards set by the *APDH* judgment and relevant international instruments. In its judgment, the Court made it clear that it was the state's responsibility to determine how to make legislation governing the electoral body compliant with human rights instruments.<fnref n="114" /> The Court's duty was simply to interpret the said instruments and determine whether the legislation is in violation of them. In *Suy Bi Gohore*, the Court held that applicants failed to sufficiently demonstrate that impugned law falls short of the relevant human rights standards.<fnref n="115" />

<footnote n="106">106 Murray (n 93).</footnote>

<footnote n="107">107 Huneeus (n 8) 23.</footnote>

<footnote n="108">108 Huneeus (n 8) 27.</footnote>

<footnote n="109">109 Huneeus (n 8) 23.</footnote>

<footnote n="110">110 Art 41(2) of the Protocol to the African Charter on Human and Peoples' Rights.</footnote>

<footnote n="111">111 *APDH* (n 103) Order 8 of the Judgment.</footnote>

<footnote n="112">112 Adjolohoun 'A crisis of design and judicial practice? curbing state disengagement from the African Court on Human and Peoples' Rights' (2020) 20 *African Human Rights Law Journal* 17.</footnote>

<footnote n="113">113 *Suy Bi Gohore & Others v Côte d'Ivoire*, AfCHPR (Order, 28 November 2019).</footnote>

<footnote n="114">114 *Suy Bi Gohore & Others v Côte d'Ivoire* (n 113) para 261.</footnote>

<footnote n="115">115 *Suy Bi Gohore* case (n 113) para 261.</footnote>
Secondly, the Inter-American Court reviews ongoing prosecutions with the assistance of the parties involved and the Commission who monitors and reports on the state's prosecution efforts.<fnref n="116" /> In short, the monitoring process of the Court runs parallel to the domestic prosecution. This is not the case at the African Court where an assessment of compliance generally takes place *after* the state has implemented the relevant measures. The Protocol provides only for the mechanism by which the Court can specify where a state has not complied with its judgment in a report submitted to the AU Assembly in its regular sessions.<fnref n="117" /> While the publication of activity reports provides information on the measures employed by states in compliance with its judgment, the reports do not comment on whether such measures are satisfactory.<fnref n="118" /> For instance, in response to the orders of the African Court in the *Zondo* and *Konaté* cases, Burkina Faso promptly and fully implemented the specific orders,<fnref n="119" /> therefore, the Activity Report indicates full compliance with the Court's orders. On the other hand, in *Alex Thomas v Tanzania*, the state was ordered to inform the Court within 6 months of measures taken. The Tanzanian government has taken steps to review some cases following the Court's judgments, although full compliance and systemic reforms are ongoing issues.<fnref n="120" />

Thirdly, the supervision phase at the Inter-American Court is dialogic, meaning the Court receives and responds to inputs from all parties. The information received about the prosecution through this supervision influences the Court's directives which become more specific regarding the exact measures that must be done for the state to fulfil the Court's order and for the victims to be satisfied.<fnref n="121" />

Rule 81 of the Court's Rules of Procedure, 2020 outlines the process for overseeing compliance with the Court's decisions,<fnref n="122" /> and mandates that state parties submit reports, which may be shared with the applicants for their input.<fnref n="123" /> This approach enables the Court to take follow-up actions as soon as a judgment is communicated to the state. Furthermore, the Court may gather relevant information from trustworthy sources to evaluate compliance with its decisions. However, the Court has been hesitant to do so in the past due to concerns about the integrity, independence, and impartiality of these sources.<fnref n="124" />

<footnote n="116">116 Huneeus (n 8) 27.</footnote>

<footnote n="117">117 Art 31 of the Protocol on the Statute of the African Court of Justice and Human Rights.</footnote>

<footnote n="118">118 Murray (n 93).</footnote>

<footnote n="119">119 As above.</footnote>

<footnote n="120">120 As above.</footnote>

<footnote n="121">121 Huneeus (n 8) 28.</footnote>

<footnote n="122">122 African Court on Human and Peoples' Rights, Rules of the Court, available at: https://www.african-court.org/en/images/Basic%20Documents/Rules_of_Cour
rt_-_25_September_2020.pdf (accessed 25 October 2024).</footnote>

<footnote n="123">123 Rules Court Rules of Procedure, 2020, Rule 81(1).</footnote>

<footnote n="124">124 Activity Report of the African Court (2020) (n 104) para 37.</footnote>
Another shortcoming of the reporting process is that most African states are not up to date with their reports. Of the few states that do hand in their reports, most submit reports with incomplete or inadequate information and make only scant references, if at all, to the decisions of the Commission or the Court.<fnref n="125" /> In response to these issues, and for purposes of implementing the Court's decisions, the Protocol of the Court created a number of organs that monitor state compliance. The Court relies heavily on the involvement of AU policy organs as they provide critical political support and a necessary interface with the states. This symbiotic relationship is acknowledged in the Protocol of the Court and the corresponding Rules of Procedure.<fnref n="126" />

Article 29(2) of the Protocol of the African Court and Rule 64(2) of the Interim Rules of the Court mandate the Executive Council to monitor the execution of judgments on behalf of the Assembly. Article 29 also requires the Court to inform the Executive Council of any judgment to enable the Council to oversee its implementation on behalf of the AU Assembly. Currently, it appears that the Council solely performs this function based on the Court's reports submitted to it, and there is no evidence that the Executive Council takes any additional steps following the Court's reports.<fnref n="127" />

Secondly, the AU Assembly, which serves as the supreme organ of the African Union has monitoring duties as well. Its members include the Heads of State and Government of member states or their representatives, and it receives, considers and takes decisions on reports and recommendations from other Union organs.<fnref n="128" /> The Assembly is mandated to monitor the implementation of policies and decisions of the Union and ensure compliance by all member states.<fnref n="129" /> In turn, the African Court is mandated to report any cases of non-compliance to the AU Assembly.<fnref n="130" /> Although state parties to the Protocol of the Court undertake to comply with its orders and guarantee execution in any case to which they are parties, there is no specific recourse provided in the Protocol against a state that deliberately refuses to comply with the Court's judgment.

Each activity report of the Court since 2014 outlines the status of compliance with its decisions; however neither the Executive Council nor the AU Assembly has taken any enforcement measures against non-complying states.<fnref n="131" /> The Assembly has been criticised as ineffective since the African Charter does not specify what action is to be taken

<footnote n="125">125 Ayeni & Von Staden (n 1) 18.</footnote>

<footnote n="126">126 Art 29 of the African Court Protocol; Rules of Procedure of the African Court 2020, Rule 81(4).</footnote>

<footnote n="127">127 Coalition for an Effective African Court on Human and Peoples' Rights, *Booklet on the implementation of the decisions of the African Court on Human and Peoples' Rights* (2021) 7.</footnote>

<footnote n="128">128 See art 9(1)(b) of the AU Constitutive Act.</footnote>

<footnote n="129">129 See art 9(1)(e) of the AU Constitutive Act.</footnote>

<footnote n="130">130 See Activity Report of the African Court (2014) paras 26-31.</footnote>

<footnote n="131">131 Ayeni & Von Staden (n 1) 11.</footnote>
once it receives reports from the Commission and the Court.<fnref n="132" />
Furthermore, due to the principle of non-interference, it cannot
interfere with the internal affairs of state parties.<fnref n="133" />

The lack of a mechanism for compelling states to comply with the African Court’s judgments is the principal reason why compliance is dire. To support this claim, the African Court’s Activity Report presented to the AU Assembly for the 2019 period indicates that most judgments of the African Court have either been partially complied with, or not complied with at all.<fnref n="134" /> In response to this ongoing challenge, the African Court has produced the Draft Framework for Reporting and Monitoring Execution of Judgments and other Decisions of the African Court (Draft Framework) which proposes the implementation of a hybrid model on monitoring state compliance through the combination of both judicial and political mechanisms.<fnref n="135" />

In my view, this Draft Framework will bring the African Court on par with its American counterpart in as far as the supervision of national prosecutions is concerned. In terms of the framework, the African Court will establish a Monitoring and Reporting Unit. States will be required to submit ‘execution reports’ to the Unit and these reports will be used by the Court, together with information from other sources such as non-governmental organisations, the United Nations, and institutions/organs of the African Union, to assess the level of compliance by the state.<fnref n="136" /> The Draft Framework teases the possibility of holding compliance hearings in cases of non-compliance with the Court’s orders.<fnref n="137" /> This is already an established mechanism under Rule 81(3) of the Court’s internal rules, which gives the Court authority to hold hearings, amongst other things, to assess the status of implementation of its decisions’ in cases of non-compliance. However, the Court has not conducted any such hearings yet, although this was proposed for the recent reparations ruling in the case of the Ogiek indigenous community in Kenya.<fnref n="138" />

Under the Draft Framework, compliance hearings will be held
under two circumstances, either based on a request from any party to
the case or pursuant to a decision arrived at by the African Court based
on its ‘suo motu’ powers.<fnref n="139" /> The African Court may only hold

<footnote n="132">132 Olukayode (n 1) 50.</footnote>

<footnote n="133">133 As above.</footnote>

<footnote n="134">134 African Union 'Assembly of the Union Thirty Second Ordinary Session 10-11 February 2019, Addis Ababa, Ethiopia' available at: https://au.int/sites/default/files/decisions/36461-assembly_au_dec_713_-_748_xxxii_e.pdf (accessed 25 October 2024).</footnote>

<footnote n="135">135 Lungu 'An appraisal of the Draft Framework for Reporting and Monitoring Execution of Judgments of the African Court on Human and Peoples' Rights' (2020) 4 *African Human Rights Yearbook* 146.</footnote>

<footnote n="136">136 Draft Framework for Reporting and Monitoring Execution of Judgments and Other Decisions of the African Court on Human and Peoples' Rights, para 11.</footnote>

<footnote n="137">137 Draft Framework, para 13.</footnote>

<footnote n="138">138 *African Commission on Human and Peoples' Rights v Kenya* (Reparations) app. no 006/2012. judgment of 23 June 2022, at para xvi.</footnote>

<footnote n="139">139 Draft Framework, para 13(b).</footnote>
compliance hearings using its *suo motu* powers in four specific circumstances. First, when there is a dispute between parties regarding the implementation of a decision.<fnref n="140" /> Second, when a Respondent state fails to submit a compliance report to the African Court.<fnref n="141" /> Third, when a state's compliance report is not responded to by the Court.<fnref n="142" /> Fourth, when the Court is provided with information indicating that a respondent state is in violation of its order or has failed to comply with the African Court's judgment.<fnref n="143" />

The Draft Framework authorises the Court to issue compliance judgments that are then sent to AU policy organs such as the Council and the Assembly for further monitoring. At the compliance stage, the African Court may undertake fact-finding missions on-site to assess the implementation progress of its judgment, or it may approve consensual compliance agreements.<fnref n="144" /> A compliance judgment must not only 'refer to the original judgment as to which aspects of the order have or have not been implemented' but expressly 'underscore the outstanding elements necessary to attain full compliance by the state'.<fnref n="145" />

Instances in which a state fails to comply will be classified as 'non-compliant'.<fnref n="146" /> Such classification will occur when either party neglects to respond,<fnref n="147" /> or when a report is not submitted within the designated time frame.<fnref n="148" /> The Assembly possesses the authority to levy sanctions against non-compliant states, as specified in article 23 of the Constitutive Act. However, sanctions may only be imposed in deserving cases. The definition of what constitutes 'deserving cases' remains unspecified in both the Constitutive Act and the proposed Draft Framework.

From the above discussion on the role of the Court in monitoring judgments, the judicial approach of the hybrid model proposed under the Draft Framework is evident. This is quite similar to the remedial practice of the Inter-American Court. However, the Draft Framework diverges from the quasi-criminal review of the Inter-American Court in that the latter is more active in ensuring that states comply with its orders, and the American Convention does not establish a body that is designed to monitor the orders of the Court. Although the OAS Assembly is tasked with receiving compliance reports, it does not have monitoring duties.<fnref n="149" />

The more political angle of the Draft Framework becomes evident when we discuss the involvement of political structures in the supervision of the African Court's orders. It remains to be seen whether

<footnote n="140">140 Draft Framework, para 13(i).</footnote>

<footnote n="141">141 Draft Framework, para 13(ii).</footnote>

<footnote n="142">142 Draft Framework, para 13(iii).</footnote>

<footnote n="143">143 Draft Framework, para 13(iv).</footnote>

<footnote n="144">144 Draft Framework, para 13(c).</footnote>

<footnote n="145">145 Draft Framework, para 15.</footnote>

<footnote n="146">146 Draft Framework, para 18.</footnote>

<footnote n="147">147 As above.</footnote>

<footnote n="148">148 As above.</footnote>

<footnote n="149">149 Lungu (n 135) 152.</footnote>
the second leg of the Draft Framework's hybrid model will be successful as it is dependent on respect for the independence of the Court by the political organs, which has been largely absent in the African region.<fnref n="150" /> Furthermore, political organs are generally constrained by their diplomatic duties as indicated by the failure of the AU to cooperate with the ICC in the arrest of Sudanese President Omar al-Bashir.<fnref n="151" />

This raises concerns that the domestic judicial systems may not be willing to hold Heads of States accountable for international crimes and the inclusion of a clause in Article 46 Abis of the Malabo Protocol that reiterates the immunity of sitting presidents, deputy presidents, and other senior government officials from prosecution, can be interpreted as an intention to exclude real accountability. In the words of Olukayode, ‘effective enforcement is sacrificed at the altar of political solidarity’.<fnref n="152" /> While the Draft Framework promises to be successful in future, at present, the African system has no coherent approach for monitoring implementation with the Court’s decisions.<fnref n="153" />

## 5 LESSONS FROM THE INTER-AMERICAN COURT

The preceding sections examining the African Court and Inter-American Court's practices highlight the growing importance of human rights courts as oversight bodies. It is clear that regional human rights tribunals now prioritise implementation within their judicial processes. Two key factors explain this evolving judicial approach in the human rights arena. First, as mentioned in the introduction of this paper, the previously accepted managerial theory of compliance, which assumed that states generally adhere to court decisions, has been discredited.<fnref n="154" /> By acknowledging that state non-compliance can also be attributed to recalcitrance, courts have seen the need for stronger remedies.

Second, there is a growing recognition that courts are disconnected from reality if they rely solely on the executives of offending states to ensure compliance. National judiciaries have consistently shown their effectiveness in encouraging states to comply with regional court orders. Consequently, supranational bodies, particularly human rights tribunals, have recognised the value of leveraging this effectiveness to promote justice. Article 29(2) of the African Court Protocol and Rule 64(2) of the Interim Rules of the Court, which require the Executive Council to oversee the execution of judgments on behalf of the Assembly, reflect the drafters' foresight in recognising the need for

<footnote n="150">150 Murray (n 93).</footnote>

<footnote n="151">151 D Akande ‘Is the Rift between Africa and the ICC Deepening? Heads of States Decide Not to Cooperate with ICC on the Bashir Case’ 2009 https://www.ejil.talk.org/is-the-rift-between-africa-and-the-icc-deepening-heads-of-states-decide-not-to-cooperate-with-icc-on-the-bashir-case/ (accessed 25 October 2024).</footnote>

<footnote n="152">152 Olukayode (n 1) 50.</footnote>

<footnote n="153">153 Sandoval, Leach & Murray (n 1) 14.</footnote>

<footnote n="154">154 Chayes & Chayes (n 6).</footnote>
monitoring court decisions. However, these provisions alone are
insufficient, as the Court depends on other entities to perform a role it
should fulfil itself.

The Inter-American Court of Human Rights, without explicitly
citing specific provisions of its statute or procedural rules, has adopted
a flexible approach by instructing domestic courts to implement its
orders and then monitoring these courts. While compliance with the
Inter-American Court's rulings could improve, the main lesson for the
African Court is that flexible and innovative application of rules,
particularly in human rights promotion and protection, achieves far
better outcomes than a rigid approach. Therefore, one of the initial
steps the African Court should consider is the adoption of its Draft
Framework which will promote dialogue between the parties and the
Court and allow the Court to actively monitor compliance with its
decisions during the process rather than after implementation is
complete.

6 CONCLUSION

This paper underscores how the Inter-American Court has significantly advanced its implementation mechanisms through the practice of quasi-criminal review. Notably, following the Court's directives, states have initiated new criminal investigations, overturned amnesties, circumvented statutes of limitations, and established new institutions and procedures to facilitate the prosecution of such crimes. Given its historical context, the African Court would benefit from adopting similar approaches to strengthen its ability to enforce compliance. An examination of the Court's jurisprudence highlighted that it is willing to expand its mandate such that it can order national prosecutions, investigations and other specific measures.

Although the second phase of quasi-criminal review needs to be
developed at the African Court, the Draft Framework signals the Court's
readiness to enhance its monitoring mechanisms to support domestic
investigations and prosecutions. Its design, which integrates flexibility
in both judicial and political avenues to ensure state adherence to
judgments, demonstrates that the African Court is actively learning
from the practices of other regional human rights tribunals.
An exposition of Africa's regional
environmental laws, policies and systems
for safeguarding the human rights to a
clean, healthy and secured environment

Jennifer Heaven Mike*

https://orcid.org/0000-0002-1716-9158

**ABSTRACT:** In Africa, there has been a growing concern about the high rate of environmental degradation and the consequential effect on the ecosystem. The environmental issues in Africa range from climate change; air, water and soil pollution; harmful mining and extractive activities; biodiversity and land degradation; deforestation; and adverse agricultural practices. In terms of governance, several measures have been undertaken at the regional level to conserve the environment and respond to some of these most critical challenges. The creation of regional environmental treaties, initiatives and institutions in Africa has ushered in significant milestones in the development of the African regional environmental governance framework. These treaties, organisations and policy strategies have played a crucial role in shaping the region's environmental governance. The establishment of these frameworks has fostered cooperation among African countries in addressing environmental challenges at the regional level. It has further provided a platform for the exchange of knowledge, best practices and resources, as well as paved the way for judicial environmentalism. This article examines some of these legal instruments and governance frameworks in place and also highlights their strengths and weaknesses. It indicates other areas of improvement for maximum effectiveness and management. The analysis also reveals that while there are some mechanisms in place to address certain environmental issues, gaps exist in the enforcement and implementation of these regulations and policies.

TITRE ET RÉSUMÉ EN FRANÇAIS

Aperçu des cadres législatifs, politiques et institutionnels
environnementaux en Afrique : une approche pour la protection des droits
humains à un environnement propre, sain et sécurisé

RÉSUMÉ: Le taux alarmant de dégradation de l'environnement en Afrique et ses impacts sur les écosystèmes soulèvent des préoccupations croissantes. Les défis environnementaux auxquels le continent est confronté incluent le changement climatique, la pollution de l'air, de l'eau et des sols, les activités minières et extractives préjudiciables, la perte de biodiversité, la déforestation et la dégradation des sols due à des pratiques agricoles inappropriées. Sur le plan de la gouvernance, des initiatives significatives ont été entreprises au niveau régional pour préserver l'environnement et relever les défis qui y sont associés. La création de traités, d'initiatives et d'institutions environnementales africaines a constitué une étape clé dans le renforcement du cadre régional de gouvernance environnementale. Ces instruments juridiques et politiques ont joué un rôle essentiel dans l'élaboration de normes régionales et dans la promotion de la coopération interétatique pour faire face aux crises environnementales. En outre, ces mécanismes ont permis l'échange de connaissances, de pratiques exemplaires et de ressources, tout en ouvrant la voie à un recours accru à

<footnote>* PhD (Exeter), LLM (London) Global Studies Scholar, DePauw University Indiana; Assistant Professor of Law, AUN; jennifer2heaven@yahoo.com; jennifer.mike@aun.edu.ng</footnote>
l'environnementalisme judiciaire. Cette étude examine un ensemble d'instruments juridiques et de cadres institutionnels existants, en mettant en lumière leurs forces et faiblesses. Elle identifie également des domaines nécessitant des améliorations pour optimiser leur efficacité et leur mise en œuvre. L'analyse révèle que, bien que des mécanismes existent pour aborder certaines questions environnementales, des lacunes subsistent en matière d'application et de mise en œuvre. L'amélioration de ces cadres juridiques et politiques reste essentielle pour garantir une protection durable des droits humains à un environnement propre, sain et sécurisé.

**KEY WORDS:** human rights; environmental rights; judicial environmentalism; multilateral environmental agreements; climate change; biodiversity

**CONTENT:**

1 Introduction.................................................................................................................. 276

2 Conceptual foundation and framework: right to environmental protection, conservation and management.................................................................................................................. 278

2.1 African Charter on Human and Peoples' Rights.................................................................................................................. 280

3 Supporting the right to a decent, clean, and healthy environment: African regional environmental treaties and policies .................................................................................................................. 282

3.1 Climate change .................................................................................................................................................................................. 282

3.2 Waste management and control.................................................................................................................. 290

3.3 Biodiversity loss.................................................................................................................................................................................. 297

4 Enforcing compliance to existing frameworks and guaranteeing environmental justice .................................................................................................................. 302

5 Conclusion: prospects for Africa's environmental control system.................. 306

# 1 INTRODUCTION

The environment is nature's greatest gift to mankind. It provides many resources vital to human health, prosperity and living a good life.¹ Protecting the environment, therefore, is an imperative means to human survival and development. In recent times, however, environmental issues in Africa have highlighted the need to be more deliberate about conserving the environment and mitigating environmental degradation.

African societies are increasingly facing severe repercussions due to the failure to adequately and effectively manage the environment.² These challenges are exacerbated by a notable lack of accountability in environmental evaluation and monitoring processes, which fails to ensure that natural resources are being used sustainably and responsibly.³ Many communities, especially in urban areas, are

1 M Falayi, J Gambiza & M Schoon 'A scoping review of environmental governance challenges in Southern Africa from 2010 to 2020' (2021) 48 *Environmental Conservation* 235-243.

2 A Ayanlade and others 'Extreme climate events in sub-Saharan Africa: a call for improving agricultural technology transfer to enhance adaptive capacity' (2022) 27 *Climate Services* 100311; World Bank *Sub-Saharan Africa: from crisis to sustainable development: a long term perspective study* (1989).

3 Falayi and others (n 1); L Yang, S Bashiru Danwana & FY Issahaku 'Achieving environmental sustainability in Africa: the role of renewable energy consumption, natural resources, and government effectiveness: evidence from symmetric and asymmetric ARDL models' (2022) 19 *International Journal of Environmental Research and Public Health* 8038.
grappling with a rise in air pollution levels, driven by industrial emissions, vehicular traffic and inadequate waste disposal practices.<fnref n="4" />

Public participation in disaster risk reduction initiatives remains alarmingly limited, preventing communities from voicing their concerns and contributing to solutions that could mitigate risks and enhance resilience.<fnref n="5" /> Compounding these issues, many regions are witnessing a critical shortage of clean water resources which, coupled with rising food insecurity, low agricultural productivity and climate change, threatens livelihoods and overall stability.<fnref n="6" /> The loss of biodiversity is another pressing concern, as habitats are destroyed and species face extinction due to human activities or neglect.<fnref n="7" />

While the foregoing concerns are shared by many regions around the world, in Africa, desertification, exacerbated by deforestation, is a distinct major challenge, especially in the Sahel region of Africa.<fnref n="8" /> Relentless deforestation and desertification exacerbate land degradation, reducing arable land and impacting agricultural productivity.<fnref n="9" /> To add to these, poor waste management practices lead to environmental pollution and health risks, creating further obstacles in the fight for sustainable development in the region.<fnref n="10" /> Addressing these environmental issues is crucial for sustainable development and the health of both people and ecosystems in Africa.

African regional environmental law, policies and initiatives can play a vital role in addressing these environmental challenges on the African continent.<fnref n="11" /> The importance of the regional treaties lies in the ability to provide a legal framework for addressing pressing environmental problems at the continental and national levels. By promoting sustainable development, incorporating key environmental principles and facilitating environmental governance, several treaties, initiatives and strategic policies ensure the preservation of Africa's natural resources and ecosystems for the current and future generations to come. Beyond establishing standards, many multilateral environmental agreements (MEAs) promote regional cooperation, ensuring that African countries can pool their resources, share

<footnote n="4">4 AL Mabogunje 'The environmental challenges in sub-Saharan Africa' (1995) 37 *Environment: Science and Policy for Sustainable Development* 4.</footnote>

<footnote n="5">5 Z Nkombi & GJ Wentink 'The role of public participation in disaster risk reduction initiatives: the case of Katlehong township' (2022) 14 *Jamba* 1203.</footnote>

<footnote n="6">6 Ayanlade and others (n 2).</footnote>

<footnote n="7">7 World Bank (n 2)</footnote>

<footnote n="8">8 Green Earth 'Desertification – Sahel case study' 20 January 2022, https://www.green.earth/blog/desertification-sahel-case-study (accessed 30 October 2024); FOA 'The magnitude of the problem', https://www.fao.org/4/x5318e/x5318e02.htm (accessed 30 October 2024).</footnote>

<footnote n="9">9 MAE AbdelRahman 'An overview of land degradation, desertification and sustainable land management using GIS and remote sensing applications' (2023) 34 *Rendiconti Lincei* 767-808.</footnote>

<footnote n="10">10 Z Zhang and others 'Municipal solid waste management challenges in developing regions: a comprehensive review and future perspectives for Asia and Africa' (2024) 930 *Science of the Total Environment* 172794.</footnote>

<footnote n="11">11 World Bank *Enhancing the climate resilience of Africa's infrastructure: the power and water sectors* (2015).</footnote>
knowledge and expertise and develop coordinated strategies to tackle
these challenges.

Establishing institutions such as the African Union (AU), the African Ministerial Conference on the Environment and regional economic communities (RECs), further strengthens the governance and enforcement of environmental regulations. Environmental rights in the African Charter on Human and Peoples' Rights (African Charter) are available to guarantee individuals and communities the right to a clean and healthy environment, access to environmental justice and the opportunity to participate in decision-making processes. Furthermore, the right to the environment underscores the moral and legal obligation to safeguard natural resources for current and future generations. The African Court on Human and Peoples' Rights (African Court) and other robust regional judicial institutions and their case law also add impetus to the framework for environmental protection in Africa.

Despite the availability of robust regulations, the challenges to the
environment persist and the implementation by nations vary widely.<fnref n="12" />
This article provides a critical overview of the regional legal system for
environmental protection and outlines their importance in securing
human rights. The exploration also identifies the current legal and
policy landscape with respect to the effectiveness in addressing its
thematic environmental issues. Furthermore, the examination is made
with the view to identifying the challenges to implementation and
enforcement. It concludes by discussing the future prospects of African
regional environmental law in addressing emerging and prevailing
environmental issues. In general, this analysis serves to set the stage for
effective implementation by the relevant bodies.

2 CONCEPTUAL FOUNDATION AND
FRAMEWORK: RIGHT TO
ENVIRONMENTAL PROTECTION,
CONSERVATION AND MANAGEMENT

The recognition of the right to environmental protection, conservation and management has gained significant momentum in recent years, emerging as a fundamental component for ensuring the well-being of both individuals and the planet as a whole.<fnref n="13" /> A growing body of international human rights treaties and declarations now explicitly acknowledges the right to a healthy environment, which provides a

<footnote n="12">12 K Ambalam 'Challenges of compliance with multilateral environmental agreements: the case of the United Nations Convention to Combat Desertification in Africa' (2014) 5 *Journal of Sustainable Development Studies* 145.</footnote>

<footnote n="13">13 JR May 'The case for environmental human rights: recognition, implementation, and outcomes' (2024) 42 *Cardozo Law Review* 983; E Cima 'The right to a healthy environment: reconceptualising human rights in the face of climate change' (2022) 31 *Review of European, Comparative and International Environmental Law* 38.</footnote>
crucial legal framework for advocating robust environmental protections and promoting more comprehensive policies.<fnref n="14" />

Adopting a human rights perspective in environmental protection is essential for a multitude of reasons. First and foremost, a human rights lens promotes the concept of sustainable development, which emphasises the necessity of achieving economic growth without compromising human dignity or causing undue harm to the environment.<fnref n="15" /> This approach ensures that the benefits of economic advancement are equitably distributed and encourages careful consideration of the long-term impacts of harmful human activities and resource extraction, and environmental degradation on vulnerable communities.

Second, protecting the environment is fundamentally linked to human rights, as a healthy environment is essential for the realisation of numerous rights, including the rights to life, health, food, water and an adequate standard of living.<fnref n="16" /> Reports indicate that environmental degradation and climate change disproportionately affect marginalised communities, leading to increased vulnerability and exacerbated social inequalities.<fnref n="17" /> Thus, ensuring environmental protection fosters social justice, empowers communities and supports the realisation of human dignity, making it a critical element of the broader human rights agenda.

Moreover, addressing environmental issues through a human rights framework establishes a solid legal basis for holding states, individuals and corporations accountable for their actions.<fnref n="18" /> By integrating human rights principles into environmental law and policy, it becomes possible to enhance accountability for environmental harms. This shift fosters a culture of responsibility, whereby states and corporations can be held liable for violations that adversely affect both the environment and human rights. Consequently, protecting the environment becomes an imperative, not only for the sake of ecological integrity but also as a means of upholding and enhancing human rights.

In the context of the African continent, the right to a healthy, clean and safe environment is explicitly recognised in the African Charter on Human and Peoples' Rights (African Charter).<fnref n="19" />

<footnote n="14">14 As above.</footnote>

<footnote n="15">15 AJ van Niekerk 'Inclusive economic sustainability: SDGs and global inequality' (2020) 12 *Sustainability* 5427; OHCHR 'Understanding human rights and climate change' Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, https://www.ohchr.org/sites/default/files/ Documents/Issues/ClimateChange/COP21.pdf (accessed 30 October 2024).</footnote>

<footnote n="16">16 As above.</footnote>

<footnote n="17">17 UN Report: Inequalities exacerbate climate impacts on poor, https://www.un.org/sustainabledevelopment/blog/2016/10/report-inequalities-exacerbate-climate-impacts-on-poor/ (accessed 30 October 2024).</footnote>

<footnote n="18">18 OO Salazar-Duran 'A human rights approach to corporate accountability and environmental litigation' (2009) 43 *University of San Francisco Law Review* 733.</footnote>

<footnote n="19">19 African Charter on Human and Peoples' Rights adopted 27 June 1981, entered into force 21 October 1986 21 ILM 58 art 24 (African Charter).</footnote>
**2.1 African Charter on Human and Peoples' Rights**

The African Charter is a legal instrument designed to cater to human rights in the African region. The Charter recognises the importance of integrating environmental concerns into development plans and strengthening environmental governance and institutions. This legal acknowledgment lays a critical foundation for a concerted and comprehensive approach to addressing environmental issues as integral to the protection of human rights. It also promotes sustainable consumption and production patterns. By framing environmental concerns as human rights issues, stakeholders can better advocate necessary changes that prioritise both ecological sustainability and respect for human dignity, ultimately contributing to a more equitable and just world for all. The African Charter contains various provisions aimed at environmental protection in Africa,<fnref n="20" /> including the right to a clean and healthy environment,<fnref n="21" /> the protection of biodiversity and ecosystems<fnref n="22" /> and the sustainable use of natural resources.<fnref n="23" />

**2.1.1 Right to a decent, clean and healthy environment**

The African Charter emphasises the right to a decent, clean and healthy environment in Article 24 as follows: 'All peoples shall have the right to a general satisfactory environment favourable to their development.'<fnref n="24" /> Scholars agree that this right recognises the importance of safeguarding a clean, safe, decent and healthy environment for the well-being of individuals and communities.<fnref n="25" /> A distinctive aspect of this proviso is its tripartite angle – it incorporates the protection of individuals’ rights in relation to their environment, the protection of collective and community rights, and the conservation of the environment itself. In this manner, it highlights the need for measures to prevent pollution, promote sustainable development and protect ecosystems. This provision in the African Charter also emphasises the responsibility of governments to respect, protect, fulfil and ensure the enjoyment of this right by their citizens. By recognising the importance of a decent, clean and healthy environment, the African Charter sets the foundation for environmental protection initiatives in Africa.

The right to environment is significantly linked to the right to health. The African Charter provides in article 16 that 'every individual shall have the right to enjoy the best attainable state of physical and mental health'. Furthermore, 'state parties to the present Charter shall

<footnote n="20">20 JH Knox & R Pejan *Human rights and the environment under African Union law* (2028) 62-77.</footnote>

<footnote n="21">21 Arts 24 & 16 African Charter.</footnote>

<footnote n="22">22 Art 24 African Charter.</footnote>

<footnote n="23">23 Art 21 African Charter.</footnote>

<footnote n="24">24 KSA Ebeku 'The right to a satisfactory environment and the African Commission' (2003) 3 *African Human Rights Law Journal* 149.</footnote>

<footnote n="25">25 D Shelton 'Human rights, environmental rights and the right to environment' (1991) 28 *Stanford Journal of International Law* 103-138.</footnote>
take the necessary measures to protect the health of their people'. This
progressive link between health and the environment has been
recognised by the African Commission on Human and Peoples' Rights
(African Commission) in SERAC<fnref n="26" /> regarding Shell Oil's exploration
activities in the Niger Delta. The plaintiffs argued that the oil
exploration activities of Shell, under the licence given by Nigerian
authorities, disregarded the safety of local communities and violated
the rights of the Niger Deltans. The plaintiffs argue that Shell's
activities have led to severe environmental degradation and health
issues in the region, violating both national and international laws,
particularly articles 16 and 24 of the African Charter. Additionally, they
claim that the Nigerian government failed to enforce regulations and
protect its citizens. The African Commission ruled in favour of SERAC,
holding Shell accountable for its negligence and failure to implement
safety measures, as well as implicating the Nigerian government in its
complicity. While recognising the Nigerian state's right to extract oil, it
also made clear that the government had not taken the necessary
precautions to guarantee sustainable development and the defence of
the environmental and human rights of the region's native population,
particularly the Ogoni people. As a result, the Commission determined
that the Nigerian state had violated articles 16 and 24 of the African
Charter regarding the right to a clean and healthy environment.

The verdict has set a crucial legal precedence that impacts future
cases involving environmental activism. Furthermore, it prompted
compensation and remediation efforts for the affected communities,
along with changes in Shell's operations and corporate social
responsibility policies. Importantly, the verdict and its implications
mark a crucial turning point in the fight for environmental rights as
supported by the provisions of the African Charter.

Gbemre v Shell Petroleum Development Company Nigeria
Limited & Others is another landmark case on the right to
environmental protection and health.<fnref n="27" /> The applicants argued that they
have a right to 'enjoy the best attainable state of physical and mental
health as well as a right to a general satisfactory environment
favourable to their development'. Accordingly, the degradation of the
environment by the respondents violated these human rights. In this
case, the judge ruled in favour of the applicants' argument and the
environmental and health rights of the affected communities.

<footnote n="26">26 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRC 60 (ACHPR 2001) (SERAC).</footnote>

<footnote n="27">27 (2005) AHRLR 151 (NgHC 2005) para 62.</footnote>
## 3 SUPPORTING THE RIGHT TO A DECENT, CLEAN, AND HEALTHY ENVIRONMENT: AFRICAN REGIONAL ENVIRONMENTAL TREATIES AND POLICIES

Although not explicitly stated, various regional instruments, plans of action and MEAs support environmental rights and the accompanying duties regarding these rights. They establish frameworks that further the objective of the environmental rights as stated in the African Charter. The availability of regional environmental treaties reflects the pressing challenges and present opportunities for environmental management, conservation and protection for sustainable development.<fnref n="28" /> Importantly, they provide a framework for cooperation and the implementation of measures to protect the environment.<fnref n="29" /> These treaties also serve as gripping reminders of the shared ambition and commitment of African nations to drive a concerted mission towards facilitating sustainable development in Africa and ultimately contribute to the Sustainable Development Goals (SDGs).

The next part will examine the available treaties, frameworks and policies with respect to a range of issues, including climate change, waste management and biodiversity conservation.

### 3.1 Climate change

Africa is not immune to some of the consequences of climate change raging across the world.<fnref n="30" /> The repercussions of climatic shifts are multifaceted, affecting essential elements such as food security, water availability, public health and overall economic stability.<fnref n="31" /> Rising temperatures, coupled with shifting precipitation patterns, are leading to more frequent and intense droughts and floods.<fnref n="32" /> Some regions are experiencing extreme dryness, while others face the threat of

<footnote n="28">28 African Union ‘Multilateral Environmental Agreements (MEAs)’, https://au.int/en/meas#:~:text=History%20of%20MEAs%20in%20Africa&text=The%20Convention%20among%20other%20issues,social%20development%20policies%20and%20programmes (accessed 30 October 2024).</footnote>

<footnote n="29">29 NJ Vig ‘Introduction: governing the international environment’ in NJ Vig & RS Axelrod (eds) *The global environment: institutions, law and policy* (1999) 1-26.</footnote>

<footnote n="30">30 World Metrological Organisation ‘Africa suffers disproportionately from climate change’ 4 September 2023, https://wmo.int/media/news/africa-suffers-disproportionately-from-climate-changes (accessed 30 October 2024).</footnote>

<footnote n="31">31 RW Abrams, JF Abrams & A L Abrams ‘Climate change challenges for Africa’ in *Encyclopedia of the anthropocene 2: reference module in earth systems and environmental sciences* (2018) 177-194; AR Chapman & AK Ahmed ‘Climate justice, human rights, and the case for reparations’ (2021) 23 *Health and Human Rights Journal* 81.</footnote>

<footnote n="32">32 As above.</footnote>
flooding.³³ Literature also shows that one of the most alarming consequences of this is the disruption of agricultural productivity, which is vital for many African economies.³⁴ For example, prolonged dry spells can decimate crops, while sudden heavy rains can cause soil erosion and the destruction of harvests, leaving farmers without livelihoods and communities without food.³⁵ This agricultural instability not only threatens the immediate food supply but also contributes to rising food prices, escalating malnutrition and food scarcity, particularly among vulnerable populations.³⁶

Water resources are also under severe strain as climate change alters rain patterns and increases evaporation rates.³⁷ This inconsistent availability of water affects not only agriculture and livestock productivity, but also drinking water supplies and sanitation, further jeopardising lives and public health.³⁸ Increased water scarcity can give rise to a reliance on unsafe water sources, leading to waterborne diseases, compounding health challenges and placing additional strain on already overburdened healthcare systems.³⁹

Moreover, the effects of climate change are driving climate-induced displacement, as communities are forced to leave their homes in search of better living conditions and resources.⁴⁰ This migration places additional pressure on urban areas and neighbouring regions, often resulting in conflict over limited resources and escalating social tensions.⁴¹ Successive assessment reports from the Intergovernmental Panel on Climate Change (IPCC) have highlighted a pressing concern: the interplay between climate change and population growth is

33 H Chikoore & MR Jury ‘South African drought, deconstructed’ (2021) 33 *Weather Climate Extremes* 100334; W Thoithi, RC Blamey & CJC Reason ‘Dry spells, wet days, and their trends across Southern Africa during the summer rainy season’ (2021) 48 *Geophysical Research Letters* e2020GL091041.

34 MB Sylla and others ‘Climate change to severely impact West African basin scale irrigation in 2°C and 1.5°C global warming scenarios’ (2018) 8 *Scientific Reports* 14395; A Dai ‘Drought under global warming: a review’ (2011) 2 *Advanced Review* 45665.

35 AJ Dietz, R Ruben & A Verhagen (eds) ‘The impact of climate change on drylands with a focus on West Africa’ (2001) NOP-ICCD Research Project 952240.

36 African Union ‘Climate change and resilient development strategy and action plan’ (2022-2032), https://au.int/sites/default/files/documents/41959-doc-CC_Strategy_andAction_Plan_2022-2032_08_02_23_Single_Print_Ready.pdf (accessed 30 October 2024).

37 Sylla and others (n 34); TD Bhaga and others ‘Impacts of climate variability and drought on surface water resources in sub-Saharan Africa using remote sensing: a review’ (2020) 12 *Remote Sensing* 4184.

38 M Hyland & J Russ ‘Water as destiny – the long-term impacts of drought in sub-Saharan Africa’ (2019) 115 *World Development* 30-45.

39 As above; Ayanlade (n 2).

40 S Adaawen and others ‘Drought, migration, and conflict in sub-Saharan Africa: what are the links and policy options?’ (2019) 2 *Current Directions in Water Scarcity Research* 15-31.

41 As above; CS Hendrix & SM Glaser ‘Trends and triggers: climate, climate change and civil conflict in sub-Saharan Africa’ (2007) 26 *Political Geography* 695-715.
expected to significantly exacerbate the deterioration of our natural
resources.⁴²

3.1.1 Legal and policy interventionsles

Although there is no regional MEA for climate change *per se*, some countries have enacted specific laws addressing climate change, often aligned with regional environmental objectives and international commitments.⁴³ These laws typically cover emissions reductions, adaptation and mitigation measures, renewable energy and sustainable land use. In Nigeria, for example, the Climate Change Act of 2021 serves as a binding legal framework for the country to address climate-related issues.⁴⁴ Fifty-four countries in Africa have ratified the Paris Agreement (and Kyoto Protocol) and are working to meet their nationally-determined contributions (NDCs) under the Paris Agreement, which outlines individual climate action plans and commitments.⁴⁵ Many countries have also taken steps to submit their national adaptation plans (NAPs) as part of their commitments to reduce emissions and adapt to climate change.⁴⁶

At the continental level, Agenda 2063 is a framework that emphasises sustainable development and environmental resilience.⁴⁷ It aims to address climate change as a key obstacle to achieving development goals.⁴⁸

The Africa Climate Change Strategy 2020-2030 represents a
critical and comprehensive continent-wide policy framework designed
to address the multifaceted challenges posed by climate change across

42 IPCC 'Climate change 2013: the physical science basis' in TF Stocker and others (eds) *Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change* (2013); Intergovernmental Panel on Climate Change (IPCC) 'Climate change 2001: impacts, adaptation and vulnerability' in JJ McCarthy and others (eds) *Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change* (2001) 1032.

43 J Setzer & C Higham 'Global trends in climate change litigation: 2023 snapshot' (2023) London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science.

44 Grantham Research Institute 'Nigeria's Climate Change Act', https://climate-laws.org/document/nigeria-s-climate-change-act_5ef7 (accessed 30 October 2024).

45 USAID 'USAID announces new partnership with African Union Commission to reach Paris Agreement Goals in Africa', https://www.usaid.gov/press-release/ usaid-announces-new-partnership-african-union-commission-reach-paris-agree ment-goals-africa (accessed 30 October 2024).

46 As above.

47 African Union 'Agenda 2063: The Africa we want', https://au.int/en/ agenda2063/overview (accessed 30 October 2024).

48 As above.
the African continent.<fnref n="49" /> This strategy acts as a strategic roadmap to effectively combat climate change through a combination of adaptation, mitigation, early warning systems and resilient development strategies. A vital aspect of the strategy is its call for the strengthening and expansion of national meteorological and hydrological services. This enhancement is necessary to ensure that these services can provide timely and accurate weather forecasts as well as effective early warning systems for extreme weather events, including floods, droughts and heatwaves, experienced across the continent. It prioritises equitable access to financial resources, facilitates technology transfer, and emphasises regional collaboration to build resilience against the increasingly severe threats posed by climate change.<fnref n="50" /> Furthermore, it seeks to leverage Africa's unique natural assets to promote sustainable economic growth.

Another cornerstone of the strategy is the promotion of climate-resilient infrastructure. Countries in the African region are urged to prioritise investments in the development of resilient infrastructure, which includes essential components such as advanced water management systems, sustainable agricultural practices and comprehensive disaster risk reduction measures. These initiatives must be specifically tailored to address local climate vulnerabilities, ensuring that each country can effectively respond to its unique challenges.

In addition, the strategy emphasises the importance of sustainable land use practices. It advocates practices such as agroforestry, reforestation and sustainable grazing to protect ecosystems and enhance carbon sequestration efforts. The strategy also outlines an acceleration of efforts focused on adopting renewable energy sources such as solar, wind and geothermal power. This transition is to be supported through policy incentives, capacity-building initiatives and investments in clean energy technologies. Furthermore, the implementation of energy-efficiency measures across various sectors – including building construction, transportation, and industry – is prioritised to mitigate energy consumption and reduce greenhouse gas emissions.

In a significant milestone for climate action on the continent, the African Union (AU) Heads of State and Government formally adopted the African Union Climate Change and Resilient Development Strategy and Action Plan for the period from 2022 to 2032 in February 2022.<fnref n="51" /> This landmark achievement establishes a foundational basis for

<footnote n="49">49 Draft African Union strategy on climate change AMCEN-15-REF-11. Addis Ababa: African Union, https://archive.uneca.org/sites/default/files/uploaded-documents/ACPC/2020/africa_climate_change_strategy_-_revised_draft_16.10.2020.pdf, African Union Climate Change And Resilient Development Strategy and Action Plan (2022-2032) https://au.int/sites/default/files/documents/41959-doc-CC_Strategy_and SILVER 2022-2032_08_02_23_Single_Print_Ready.pdf (accessed 30 October 2024).</footnote>

<footnote n="50">50 African Union Draft Africa Climate Change Strategy 2020-2030.</footnote>

<footnote n="51">51 African Union 'African Union Climate Change and Resilient Development Strategy and Action Plan (2022-2032)', https://au.int/sites/default/files/documents/41959-doc-CC_Strategy_and SILVER 2022-2032_08_02_23_Single_Print_Ready.pdf (accessed 30 October 2024).</footnote>
coordinated climate action at the continental level.<fnref n="52" /> It provides a comprehensive framework within which African countries and communities can pursue a unified climate change agenda and resilience development strategy. The plan aims to foster partnerships among countries and stakeholders, while rallying support for its effective implementation, thus bolstering Africa's collective response to one of the most pressing challenges.

The African Union Green Recovery Action Plan 2021-2027 also aims to 'tackle the combined challenges of the COVID-19 recovery and climate change, by focusing on critical areas, including climate finance, renewable energy, resilient agriculture, resilient cities, land use and biodiversity'.<fnref n="53" />

Another important regional climate change initiative is the Kampala Ministerial Declaration on Migration, Environment, and Climate Change (KDMECC-AFRICA), which was adopted in 2021.<fnref n="54" /> This Declaration is particularly noteworthy as it specifically addresses the complex interplay between migration, environmental degradation and climate change across the African continent. It aims to foster an integrated approach and establish an action-oriented framework that deals with human mobility driven by climate change and environmental factors. A key aspect of the KDMECC-AFRICA is its emphasis on human rights, advocating the protection of the rights of migrants impacted by environmental and climate-related issues. This focus on human rights underscores the necessity of recognising and upholding the dignity and rights of all individuals, irrespective of their migration status. The Declaration highlights the fact that environmental degradation and the adverse effects of climate change are substantial contributors to migration and displacement in Africa. Therefore, it calls for a comprehensive and cohesive strategy to tackle these intertwined challenges.

An essential component of the Declaration is the call for cross-sectoral approaches and regional cooperation, which is paramount to the successful implementation of all regional instruments and policy agendas. It champions the integration of migration, environmental and climate change policies at both national and regional levels, which is crucial for formulating comprehensive frameworks capable of effectively tackling the multifaceted nature of these issues. Furthermore, it encourages enhanced collaboration among African nations to exchange knowledge, resources and best practices aimed at addressing the challenges posed by climate change and migration.

<footnote n="52">52 AICCRA 'Africa's new climate change strategy offers a continental roadmap' 18 October 2022, https://aiccra.cgiar.org/news/africas-new-climate-change-strategy-offers-continental-roadmap (accessed 30 October 2024).</footnote>

<footnote n="53">53 African Union 'Africa Environment and Wangari Maathai Day' 3 March 2023, https://au.int/en/wangari-maathai-day#:~:text=The%20African%20Union%20Green%20Recovery,cities%2C%20land%20use%20and%20biodiversity. The Action plan can be found at https://au.int/en/documents/20210715/african-union-green-recovery-action-plan-2021-2027 (accessed 30 October 2024).</footnote>

<footnote n="54">54 IOM 'African countries sign continental agreement to address climate mobility', https://www.iom.int/news/african-countries-sign-continental-agreement-address-climate-mobility (accessed 30 October 2024).</footnote>
While the KDMECC-AFRICA is still in its early stages of
implementation, it stands as a critical instrument reinforcing Africa's
commitment to engaging in global efforts to combat climate change and
address migration concerns.

In addition to the KDMECC-AFRICA, several other initiatives have emerged to bolster adaptation, mitigation and climate control actions in Africa. The Africa Adaptation Initiative (AAI) exemplifies this effort by focusing on the direct impacts of climate change.<fnref n="55" /> Its objectives include enhancing observational infrastructure and early warning systems; supporting the establishment and strengthening of national institutions and policies; implementing specific adaptation projects; and mobilising financial resources and investments. Through the AAI, African national governments are expected to take the lead in implementing initiatives, while a Continental Adaptation Support Unit will be formed to coordinate these efforts and amplify action.

The African Agriculture Initiative (AAA), launched at COP22, aims to mitigate Africa's vulnerability to climate change and enhance food security on the continent.<fnref n="56" /> The AAA concentrates on a variety of critical projects, such as improving soil management techniques, enhancing agricultural water control, developing strategies for effective climate risk management, and promoting capacity-building initiatives and funding solutions. Presently, the AAA enjoys active support from 25 African nations, various international organisations, including the United Nations Framework Convention on Climate Change (UNFCCC) and the Food and Agricultural Organisation (FAO), and has potential avenues to significantly contribute to agricultural projects despite confronting various implementation challenges.<fnref n="57" />

Another noteworthy initiative is the Africa Hydromet Programme, which is being implemented in collaboration with the World Bank Group and the World Meteorological Organisation.<fnref n="58" /> This regional framework aims to achieve several critical objectives. First, it focuses on capacity building for meteorological institutions, enhancing the knowledge and skills of these institutions to improve their ability to provide accurate and timely hydrometeorological services. Second, it seeks to strengthen data collection and analysis capabilities, ensuring that reliable and comprehensive information is available for decision making related to weather and climate. Lastly, the initiative aims to enhance forecasting and modelling techniques, thereby advancing the accuracy and reliability of weather and climate predictions essential for effective planning and response.

<footnote n="55">55 African Development Bank Group *Africa thriving and resilient: the African Development Bank Group's Second Climate Change Action Plan (2016-2020)* (African Development Bank Group) 19.</footnote>

<footnote n="56">56 As above.</footnote>

<footnote n="57">57 United Nations 'UN, initiative for the adaptation of african agriculture to climate change non-governmental organisation (NGO)', https://sdgs.un.org/partnerships/initiative-adaptation-african-agriculture-climate-change (accessed 30 October 2024).</footnote>

<footnote n="58">58 World Bank 'Africa Hydromet Programme', https://www.worldbank.org/en/programs/africa_hydromet_program (accessed 30 October 2024).</footnote>
These initiatives collectively contribute to a robust framework for
addressing the multifaceted challenges posed by climate change in
Africa, highlighting the continent's proactive commitment to
sustainable development and resilience in the face of climate adversity.

To assist member states in lowering the risk of loss and damage
from extreme weather events and natural catastrophes, the Agreement
for the Establishment of the African Risk Capacity Agency (ARC) was
adopted in 2012.<fnref n="59" /> The ARC was also established as a specialised
agency of the AU to help member states of the AU to improve their
capacities to better plan, prepare and respond to extreme weather
events and natural disasters.<fnref n="60" /> The ARC further assists AU member
states to reduce the risk of loss and damage caused by extreme weather
events and natural disasters affecting Africa's populations by providing
targeted responses to disasters in a more timely, cost-effective,
objective and transparent manner.<fnref n="61" />

Various other strategies, plans of action and sub-regional
frameworks are available to address the unique climate change
challenges in the continent. For example, the East African Community
(EAC) has developed a regional climate change policy, the EAC Climate
Change Policy (EACCCP), which focuses on adaptation, mitigation and
capacity building among member states.<fnref n="62" /> The Southern African
Development Community (SADC) also has a number of regional
climate change strategies aimed at enhancing resilience to climate
change impacts, particularly in sectors such as agriculture and water
management.<fnref n="63" />

The ECOWAS Strategic Programme on Reducing Vulnerability and
Adapting to Climate Change 2020-2030 is a West African-focused
strategy to reduce vulnerability to climate change and to build the
resilience of affected communities. Similarly, the ECOWAS
Environment Policy highlights the need for a comprehensive and
coordinated approach to address environmental challenges in the

<footnote n="59">59 AU *African Union handbook* (2020), https://au.int/sites/default/files/documents/31829-doc-au_ha ndbo ok_2 020_english_web.pdf (accessed 30 October 2024); arts 1 & 2 of the ARC Agreement; N Ngem ‘Chapter 15: The Agreement for the Establishment of the African Risk Capacity (ARC) Agency’ in N Ngem *An introduction to the African Union environmental treaties* (2023) 92.</footnote>

<footnote n="60">60 Art 2 ARC Agreement.</footnote>

<footnote n="61">61 Art 3 ARC Agreement.</footnote>

<footnote n="62">62 JF Jarso 'The East African Community and the climate change agenda: an inventory of the progress, hurdles, and prospects' (2012) 12 *Sustainable Development Law and Policy* 19.</footnote>

<footnote n="63">63 These include the SADC Policy Paper on Climate Change, the SADC Water Sector Climate Change Adaptation Strategy and the Regional Climate Change Programme. See S Munzhedzi 'Climate change adaptation Southern African Development Community (SADC) adaptation scenarios Factsheet Series, Factsheet 1 of 7' Department of Environmental Affairs, Climate Change Branch, https://www.dffe.gov.za/sites/default/files/reports/ltasfactsheet_perspectiveforSADC.pdf (accessed 30 October 2024).</footnote>
region.<fnref n="64" /> This policy recognises the importance of sustainable development and the preservation of natural resources. It aims to enhance environmental governance and promote the adoption of environmentally-friendly practices in member states. By establishing clear objectives and goals, as well as key principles and strategies, the policy framework provides a roadmap for effective implementation and monitoring mechanisms. Additionally, this climate strategy for the ECOWAS region emphasises the importance of mitigating and adapting to the impacts of climate change, while also promoting the use of renewable energy sources. The policy is important to the ECOWAS region for several reasons. The ECOWAS region faces significant environmental challenges, including deforestation, land degradation, water scarcity, pollution and loss of biodiversity.<fnref n="65" /> Recognising the importance of addressing these issues, the policy and strategy have been developed to mitigate and adapt to the impacts of climate change in the region in relation to these issues. It also promotes the use of renewable energy as a key solution to reducing greenhouse gas emissions. The policy framework sets objectives and goals and establishes key principles and strategies for implementation. Effective monitoring mechanisms would ensure the successful implementation of this policy.

Organisations, projects and institutions that contribute to sustainable environmental development and protection in Africa include the African Climate Policy Centre;<fnref n="66" /> The African Climate Foundation;<fnref n="67" /> the ClimDev Special Fund (CDSF);<fnref n="68" /> the Africa Phytosanitary Programme (APP).

While these initiatives, agreements, action plans, strategies and policies are significant in tackling climate change, it is worth noting that they do not create binding obligations on states. Many of these offer policy guidance without a corresponding legal enforcement obligation. The effectiveness is also hindered by the absence of explicit legally-binding provisions to institute actions against individuals and

<footnote n="64">64 The ECOWAS Regional Climate Strategy and its 2030 Action Plan were formally adopted by the 88th ordinary session of the ECOWAS Council of Statutory Ministers held from 30 June to 1 July 2022 in Accra, Ghana. Directorate of Environment and Natural Resources of ECOWAS *The ECOWAS regional climate strategy and its 2022-2030 action plan* (2022), https://climatestrategy.ecowas.int (accessed 30 October 2024).</footnote>

<footnote n="65">65 ECOWAS & USAID *ECOWAS Environmental Action Plan 2020-2026* March 2020 (ECOWAS),</footnote>

<footnote n="66">66 UNECA 'African Climate Policy Centre', https://www.uneca.org/acpc (accessed 30 October 2024).</footnote>

<footnote n="67">67 *Africa thriving and resilient: the African Development Bank Group's Second Climate Change Action Plan (2016-2020)* (African Development Bank Group) 19; African Climate Foundation 'Developing, supporting, elevating and catalysing climate action in Africa', https://africanclimatefoundation.org/#:~:text=The%20African%20Climate%20Foundation%20%7C%20Unlocking%20Green%20Development (accessed 30 October 2024).</footnote>

<footnote n="68">68 African Development Bank Group 'The ClimDev Special Fund (CDSF)', https://www.afdb.org/en/topics-and-sectors/initiatives-partnerships/climate-for-development-in-africa-climdev-africa-initiative (accessed 30 October 2024).</footnote>
organisations that fail to carry out adaption, mitigation or control measures.

Africa's limited infrastructure and financial resources significantly hinder efforts to adapt to these changes and build resilience against climate-related shocks. Many countries struggle to implement effective adaptive strategies due to a lack of investment in technology, infrastructure and education. This creates a cycle of vulnerability from which it is difficult to escape.

Another identifiable challenge lies in the content and nature of these efforts. As noted by Gadani and others, the governments in the African region demonstrate a low to moderate level of commitment to greenhouse gas (GHG) mitigation efforts, with none exhibiting a high level of ambition.<fnref n="69" /> This situation can largely be attributed to their significant vulnerability to climate change impacts, which leads to a stronger emphasis on adaptation strategies rather than aggressive mitigation initiatives.<fnref n="70" /> Furthermore, African countries contribute relatively little to global GHG emissions, which also influences their policy focus.<fnref n="71" />

To effectively tackle these challenges, there is a critical need for international cooperation and support. While the Paris Agreement provides a robust framework, there is also a need to have African-oriented and focused MEAs which would take into account the unique challenges that African countries face and the collaborative effort to be undertaken to fight climate change in the region. This system should include the promotion of sustainable development strategies that emphasise the importance of environmental conservation and resilience building. It should emphasise investment in renewable energy sources, such as solar and wind power, which can provide alternative energy solutions while reducing dependence on fossil fuels.

The system should stress the focus and support for climate-smart agricultural practices, which should be tailored to fit the local contexts of different regions, ensuring that farmers have the tools and knowledge necessary to adapt to changing climatic conditions. By addressing these challenges through collaborative efforts and innovative strategies, Africa can work towards a more sustainable and resilient future in the face of ongoing climate change.

## 3.2 Waste management and control

Environmental waste management in Africa faces a multitude of significant challenges that are largely rooted in the context of rapid urbanisation, inadequate infrastructure and insufficient regulatory

<footnote n="69">69 G Gadani, I Galarraga & E Sainz de Murieta 'Regional climate change policies: an analysis of commitments, policy instruments and targets' SEEDS Working Paper 5/2020 (2020).</footnote>

<footnote n="70">70 As above.</footnote>

<footnote n="71">71 As above.</footnote>
frameworks.<fnref n="72" /> As cities expand at an unprecedented rate, many urban areas are increasingly burdened by inefficient waste collection and disposal systems. This inefficiency often leads to the accumulation of solid waste in public spaces, such as streets and waterways, creating not only visual pollution but also serious public health risks. Diseases linked to waste accumulation, such as respiratory infections and gastrointestinal illnesses, disproportionately affect vulnerable communities, exacerbating existing health inequalities.<fnref n="73" />

An alarming trend is the rising generation of plastic waste, particularly in densely-populated urban centres where consumption habits drive high levels of single-use plastics in coastal areas.<fnref n="74" /> The majority of these cities struggle with low recycling rates, often due to a lack of adequate facilities and public infrastructure dedicated to sorting and processing recyclable materials.<fnref n="75" /> Informal waste management systems, which often rely on scavenging and rudimentary methods of disposal, dominate the landscape.<fnref n="76" /> This lack of formal systems not only hinders recycling efforts but also poses additional risks, as many recyclables are not processed properly.<fnref n="77" />

Electronic waste, or e-waste, presents another layer of complexity in environmental waste management.<fnref n="78" /> Discarded electronics, which contain hazardous materials such as lead and mercury, frequently end up in landfills without proper treatment.<fnref n="79" /> Vulnerable communities, often located near these disposal sites, face significant health risks from exposure to toxic substances, which can lead to long-term health complications.<fnref n="80" /> Alongside this, inadequate funding for healthcare systems, insufficient training and a lack of awareness about policies and legislation for managing medical waste have resulted in increased

<footnote n="72">72 NEPAD ‘What a waste: innovations in Africa’s waste material management’ 19 July 2021, https://www.nepad.org/blog/what-waste-innovations-africas-waste-material-management (accessed 30 October 2024).</footnote>

<footnote n="73">73 Chapman & Ahmed (n 31).</footnote>

<footnote n="74">74 World Bank *Plastic pollution in coastal West Africa* (2023), https://documents1.worldbank.org/curated/en/099025507112355521/pdf/IDUofcd59fba00cfa04a1e09c6801aea6f2c8918.pdf (accessed 30 October 2024).</footnote>

<footnote n="75">75 As above; Z Sadan & L de Kock ‘Plastic pollution in Africa: identifying policy gaps and opportunities’ (2021), WWF South Africa, Cape Town, South Africa, https://wwfafrica.awsassets.panda.org/downloads/wwf_plastic_pollution.pdf (accessed 30 October 2024).</footnote>

<footnote n="76">76 OO Oguntoyinbo ‘Informal waste management system in Nigeria and barriers to an inclusive modern waste management system: a review’ (2012) 126 *Public Health* 441-447.</footnote>

<footnote n="77">77 JM Chisholm and others ‘Sustainable waste management of medical waste in African developing countries: a narrative review’ (2021) 39 *Waste Management and Research* 1149-1163.</footnote>

<footnote n="78">78 LS Ankit and others ‘Electronic waste and their leachates impact on human health and environment: global ecological threat and management’ (2021) 24 *Environmental Technology and Innovation* 102049,</footnote>

<footnote n="79">79 World Health Organisation ‘Electronic waste (e-waste)’ 1 October 2024, https://www.who.int/news-room/fact-sheets/detail/electronic-waste-(e-waste) (accessed 30 October 2024).</footnote>

<footnote n="80">80 M Vrijheid ‘Health effects of residence near hazardous waste landfill sites: a review of epidemiologic literature’ (2000) 1 *Environmental Health Perspectives* 101.</footnote>
improper handling of waste in hospitals, healthcare facilities, and the transportation and storage of medical waste.<fnref n="81" />

Moreover, transboundary waste issues in Africa are increasingly problematic, as many countries across the continent face illegal dumping and trafficking of hazardous waste, including e-waste and toxic materials, primarily from more industrialised countries.<fnref n="82" />

### 3.2.1 Legal and policy interventions

Some efforts have been made at the regional level to control harmful waste, especially hazardous transboundary waste management.<fnref n="83" /> The Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako Convention) is one of the most significant instruments in this respect.<fnref n="84" /> The Bamako Convention is an agreement aimed at addressing the environmental challenges related to hazardous waste in Africa.<fnref n="85" /> The Bamako Convention was created in response to article 11 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), which enjoins state parties to engage in bilateral, regional and multilateral agreements on hazardous waste to further the Basel Convention's goals. The Basel Convention's inability to prevent the transfer of hazardous waste to less developed countries (LDCs) and the discovery that numerous developed countries were exporting toxic garbage to Africa served as the impetus for the Bamako Convention. The need for the Convention was strengthened following several prominent cases, such as the 1988 Koko incident, when a small fishing town in Southern Nigeria was the site of an unlawful disposal of nearly 2,000 drums, bags and containers containing hazardous wastes, including polychlorinated biphenyls (PCBs), a highly carcinogenic chemical compound, by Italian businesses.<fnref n="86" /> The vendor stated that the garbage would help poor farmers as fertiliser, but it ended up being a nightmare.

<footnote n="81">81 J Vidal 'Toxic e-waste dumped in poor nations, says United Nations' *Our World* 16 December 2013, https://ourworld.unu.edu/en/toxic-e-waste-dumped-in-poor-nations-says-united-nations (accessed 30 October 2024).</footnote>

<footnote n="82">82 J Clapp 'Africa, NGOs, and the international toxic waste trade' (1994) 3 *Journal of Environment and Development* 17-46.</footnote>

<footnote n="83">83 IUCN ELC 'UNEP register of international treaties and other agreements in the field of the environment, 1996' 2005, https://www.ecolex.org/details/treaty/bamako-convention-on-the-ban-of-the-import-into-africa-and-the-control-of-transboundary-movement-and-management-of-hazardous-wastes-within-africa-tre-001104/ (accessed 30 October 2024).</footnote>

<footnote n="84">84 Full text available at https://au.int/sites/default/files/treaties/7774-treaty-0015_-_bamako_convention_on_hazardous_wastes_e.pdf (accessed 30 October 2024).</footnote>

<footnote n="85">85 OC Ruppel 'Environmental law and policy in the African Union' in OC Ruppel & KR Ruppel-Schlichting (eds) *Environmental law and policy in Namibia* (2013) 133.</footnote>

<footnote n="86">86 JO Ihonvbere 'The state and environmental degradation in Nigeria: a study of the 1988 toxic waste dump in Koko' (1994-95) 23 *Journal of Environmental Systems* 207-227.</footnote>
Essentially, the Bamako Convention prohibits the import of hazardous waste into Africa, regulates the transboundary movement of such waste, and establishes guidelines for the management and disposal of hazardous waste in Africa, except for pollutants from ship discharges. Hazardous wastes are defined under the Convention as hazardous substances that are prohibited, cancelled or refused registration by government regulatory action for reasons related to health or the environment. Article 2 of the Convention also addresses radioactive wastes. Legislation designating and classifying hazardous wastes not previously included in the Convention will be enacted by the parties, according to article 3. Article 4 requires parties to take preventive measures with regard to waste generation and to implement a ban on the import of hazardous waste as well as the dumping of hazardous waste in internal and maritime seas. Every party shall also refrain from exporting hazardous wastes to states that have made such imports illegal by law or international agreement, or if it has reasonable grounds to suspect that the wastes in question cannot be managed in an environmentally-sound manner.

In order to report and take action regarding the transboundary transport of hazardous wastes, members are required to set up monitoring and regulating bodies (articles 5, 6, 7, 8 and 9). Parties are to also share information on hazardous waste events as well as strategies for resolving the issues that have been discovered (article 13).

This Convention is comprehensive for its objective and targeted purpose. By implementing the Convention, African countries can safeguard their environments and protect their populations from the risks associated with hazardous waste. This framework, if properly implemented and adhered to, can also contribute to a cleaner and healthier environment in Africa by preventing the influx of harmful substances and ensuring proper management of hazardous waste on the continent. Through the directive of this Convention, African countries can develop national legislation and enforcement mechanisms to ensure the safe handling, transportation and treatment of hazardous waste.

This regional cooperation also strengthens capacity building, technical assistance programmes and knowledge exchange to enhance Africa's ability to effectively manage and regulate hazardous waste. By implementing effective regulations and enforcement mechanisms, under the directives of this Convention, African countries can safeguard their environments and protect the health of their populations from the harmful impacts of hazardous waste.

In Africa, other measures have been implemented to regulate the management and disposal of specific waste. The Abidjan Convention, officially recognised as the Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, serves as a vital framework designed to tackle a variety of marine and coastal environmental issues,
with a significant focus on the growing crisis of plastic pollution.<fnref n="87" /> This wide-ranging agreement fosters a collaborative approach to the sustainable management of marine resources, highlighting the urgent necessity for legally-binding measures to effectively combat plastic waste and its detrimental effects on marine biodiversity and ecosystems. In response to escalating concerns regarding plastic pollution in coastal regions, the Convention is crucial for addressing the transboundary nature of marine pollution, which often requires collective action and shared responsibilities. Furthermore, the Abidjan Convention encourages member states to develop robust national action plans tailored to their specific environmental challenges, ensuring that these plans include effective strategies for waste management, reduction and recycling.

In addition to promoting national initiatives, the Convention facilitates the exchange of best practices among countries. This collaborative sharing of successful strategies is essential for improving waste management approaches and fostering innovation in combating plastic pollution. By advocating stricter regulatory frameworks and collective action, the Abidjan Convention plays an instrumental role in bolstering the global fight against plastic pollution, particularly in the vulnerable coastal regions of West and Central Africa, which are increasingly exposed to the adverse impacts of improperly-managed plastic waste.

Africa's nuclear weapon-free zone<fnref n="88" /> was established by the African Nuclear-Weapon-Free Zone Treaty, also referred to as the Pelindaba Treaty.<fnref n="89" /> The Treaty effectively prohibits the development, production, testing, stockpiling, acquisition, custody, control, or stationing of nuclear weapons in addition to the radioactive waste disposal ban.<fnref n="90" /> The treaty also bans treaty parties from attacking any nuclear sites in the zone and mandates that they uphold the strictest physical security guidelines for nuclear materials, facilities and equipment, all of which may only be utilised for peaceful reasons.

It takes the environment into account by requiring state parties to comply with the measures outlined in the Bamako Convention and not to take any action to assist or encourage the dumping of radioactive wastes and other radioactive matter anywhere within the African nuclear weapon-free zone.

One important regional initiative aimed at addressing the burgeoning issue of electronic waste is the African Union's Electronic Waste Management Plan (EWMP). This comprehensive strategy is designed to tackle the increasing challenges associated with e-waste

<footnote n="87">87 Full text at https://apps1.unep.org/resolutions/uploads/1981_-_convention-west_and_central_africa_region.pdf (accessed 30 October 2024).</footnote>

<footnote n="88">88 For the purpose of the Treaty and its Protocols, 'African nuclear-weapon-free zone' means the territory of the continent of Africa, island states members of the OAU and all islands considered by the OAU in its resolutions to be part of Africa.</footnote>

<footnote n="89">89 Full text at https://www.peaceau.org/uploads/treaty-en-african-nuclear-weapon-free-zone.pdf (accessed 30 October 2024).</footnote>

<footnote n="90">90 Art 3 Pelindaba Treaty.</footnote>
across the continent, which poses significant risks to both the environment and public health.<fnref n="91" /> The EWMP encourages member states to establish and enforce national laws and regulations tailored specifically to e-waste management. Such regulatory frameworks are crucial for promoting responsible disposal and effective recycling practices. In addition, the plan emphasises the importance of maximising the recovery of valuable materials found in e-waste, such as metals and rare earth elements, which can contribute to sustainable economic growth. Furthermore, the EWMP advocates the creation of eco-efficient and sustainable business models within the e-waste sector. The plan also underscores the necessity of considering the social implications of e-waste management strategies, ensuring that local contexts and community needs are taken into account. Capacity building is another key component of the EWMP, which aims to enhance knowledge sharing and communication among stakeholders. The EWMP also identifies best practices for recycling e-waste, highlighting the use of innovative, environmentally-friendly technologies.

In November 2019 the African Ministerial Conference on Environment convened and adopted the Durban Declaration, marking a significant milestone as the first comprehensive continent-wide policy dedicated to fostering support for resource recovery and the principles of a circular economy.<fnref n="92" /> This Declaration aims to significantly mitigate waste production and environmental degradation by promoting practices such as reusing, repairing and recycling materials and products across Africa.

At the sub-regional level, the Environmental Action Plan (EAP) for the years 2020 to 2026 has been developed with considerable backing from the USAID-funded West Africa Biodiversity and Climate Change (WABICC) Project.<fnref n="93" /> This action plan is crafted to address emerging environmental issues and current trends in management practices. It emphasises the urgent need to confront climate change while conserving the region's natural capital, which includes essential resources such as forests, wildlife and their habitats, as well as protecting vital soil and water resources. Additionally, the EAP aims to tackle pressing concerns such as pollution, particularly the challenge posed by plastic waste, as well as hazardous chemicals and waste management.

<footnote n="91">91 African union 'Electronic Waste (E-Waste) Management Plan and Guidelines – APRIL 2023', https://au.int/sites/default/files/documents/42723-doc-AUC_E-Waste_Management_Plan_EWMP_BIASHARA_P180117_April_2023.pdf (accessed 30 October 2024).</footnote>

<footnote n="92">92 LLSD, SDG Knowledge Hub 'In Durban Declaration, African ministers seek action for sustainability and prosperity', https://sdg.iisd.org/news/in-durban-declara tion-african-ministers-seek-action-for-sustainability-and-prosperity/ (accessed 30 October 2024).</footnote>

<footnote n="93">93 ECOWAS Environmental Action Plan 2020-2026 March 2020, https://ecowap. ecowas.int/media/ecowap/file_document/2020_ECOWAS_ECOWAS_ENVIRO NMENTAL_ACTION PLAN_Final_Version_-_ENG.pdf (accessed 30 October 2024).</footnote>
By adhering to the regulations outlined in these frameworks, African nations can significantly reduce the risks associated with hazardous waste, ultimately safeguarding the health of their populations and protecting vital natural resources.

Although effective regulation of waste management is a crucial aspect of environmental protection in Africa and a means of securing the rights of African citizens, the successful implementation of these waste management strategies is often undermined by several challenges, including inadequate waste disposal systems, outdated technological equipment and insufficient management skills in urban areas.<fnref n="94" /> These deficiencies coexist with weak strategic, institutional and organisational structures, despite the existence of robust legal frameworks.<fnref n="95" /> Moreover, African nations vary greatly in terms of economic development, institutional capacity and access to environmental resources, creating challenges for uniform practical and policy implementation across diverse regions. Issues such as corruption and a lack of accountability in waste management practices can lead to the misallocation of resources, ineffective service delivery, and poor enforcement of regulations – including those governing the interregional cross-border trade of plastic waste.

In this context, the Bamako Convention, which was established to control and reduce the transboundary movement of hazardous waste, faces significant challenges due to its inconsistent enforcement. This lack of uniformity results in loopholes that permit the ongoing illicit trade of hazardous materials. To effectively address these complex issues, there is a pressing need for stronger regional cooperation, stricter enforcement of existing international agreements, the establishment of enhanced monitoring systems, and comprehensive public awareness campaigns aimed at reducing waste generation and promoting responsible disposal practices.

Joint action thus is essential not only to combat plastic pollution, but also to create a unified market characterised by high environmental standards and legal certainty for businesses operating in the region. This concerted effort can facilitate a more sustainable approach to waste management while fostering economic growth and environmental stewardship across Africa.

To effectively tackle these lingering waste management issues, African nations must also adopt and implement comprehensive waste management policies tailored to the unique challenges they face. Investment in sustainable waste management technologies is crucial, including the development of efficient waste collection and sorting systems.

<footnote n="94">94 JK Debrah, & GK Teye & MAP Dinis 'Barriers and challenges to waste management hindering the circular economy in sub-Saharan Africa' (2022) 6 *Urban Science* 57; JK Debrah, DG Vidal & MAP Dinis 'Raising awareness on solid waste management through formal education for sustainability: a developing countries evidence review' (2021) 6 *Recycling* 6.</footnote>

<footnote n="95">95 As above; L Godfrey and others 'Solid waste management in Africa: governance failure or development opportunity?' in N Edomah (ed) *Regional development in Africa* (2020) 1.</footnote>
Following its environmental obligations and commitment, governments and organisations should promote recycling initiatives that engage local communities and create awareness around the importance of reducing waste and recycling. Public education campaigns that highlight the significance of environmental stewardship are essential in fostering a culture of sustainability. By encouraging individual and collective responsibility for waste generation and disposal, African nations can work towards creating healthier urban environments, protecting public health, and mitigating the impact of waste on the environment. In doing so, they not only address current environmental challenges but also lay the groundwork for a more sustainable future.

## 3.3 Biodiversity loss

Biodiversity loss in Africa poses a significant environmental challenge, driven by factors such as habitat destruction, climate change, poaching, invasive species and unsustainable land use practices.<fnref n="96" /> The continent is home to a remarkable array of flora and fauna, many of which are endemic, but rapid urbanisation, agricultural expansion and deforestation threaten these ecosystems.<fnref n="97" /> This decline in biodiversity undermines essential ecosystem services, including soil fertility, water purification and climate regulation, which are crucial for the livelihoods of millions of people.<fnref n="98" /> Moreover, the loss of species can destabilise ecosystems, leading to cascading effects that further hinder conservation efforts and exacerbate human-wildlife conflicts. To tackle this challenge, Africa requires integrated conservation strategies that promote sustainable development, habitat restoration and community involvement, while also enhancing legal protections for vulnerable species and ecosystems.

### 3.3.1 Legal and policy measures

African nations came together in Algiers, Algeria, in 1968 to sign the African Convention on the Conservation of Nature and Natural Resources, usually referred to as the Algiers Convention. African leaders, in recognition that soil, water, flora and faunal resources constitute a capital of vital importance to mankind, agreed 'to harness the natural and human resources of the African continent for the total

<footnote n="96">96 UNEP-WCMC *The state of biodiversity in Africa: a mid-term review of progress towards the Aichi targets* (UNEP-WCMC).</footnote>

<footnote n="97">97 As above; SP Ariori & P Ozer 'Development of forest resources in Sudano-Sahelian West Africa over the last 50 Years' (2005) 29 *Geo-Eco-Trop* 61-68.</footnote>

<footnote n="98">98 World Health Organisation 'Climate change and health', https://www.who.int/teams/environment-climate-change-and-health/climate-change-and-health/biodiversity (accessed 30 October 2024); World Health Organisation 'Biodiversity and health' 3 June 2015, https://www.who.int/news-room/fact-sheets/detail/biodiversity-and-health#:~:text=Biodiversity%20loss%20can%20have%20significant%20direct%20human, may%20even%20cause%20or%20exacerbate%20political%20conflict (accessed 30 October 2024).</footnote>
advancement of our peoples in spheres of human endeavour'.<fnref n="99" /> In this regard, they adopted the African Convention<fnref n="100" /> along with a list of protected species (Class A and Class B) in Algiers, Algeria on 15 September 1968. The Algiers Convention superseded the Convention Relative to the Preservation of Fauna and Flora in Their Natural State of 1933 but has been replaced by the 2003 African Convention on Conservation of Nature and Natural Resources (revised), in line with global and regional instruments.

The revised 2003 Convention focuses on three key areas, namely, the conservation and management of protected areas; the preservation of endangered species; and the promotion of sustainable development practices. The stated objective of the Convention is to improve environmental protection; encourage resource conservation and sustainable use; and to harmonise and coordinate policies in various areas in order to achieve development policies and programmes that are socially, economically and ecologically sound.<fnref n="101" />

The Convention emphasises the need to balance conservation efforts with the social and economic needs of local communities.<fnref n="102" /> It calls for the establishment of protected areas to safeguard ecosystems and biodiversity, and encourages the sustainable use of natural resources to support economic development. By addressing these issues, the Convention seeks to promote long-term environmental sustainability and ensure the protection of Africa's natural heritage for future generations.

This important Convention serves as a means to utilise Africa's abundant natural and human resources for the advancement of its people. The Convention, among other issues, acknowledged the importance of natural resources from an economic, nutritional, scientific, educational, cultural and aesthetic point of view, and escribe the dangers that threaten some of these irreplaceable assets, while also acknowledging that the utilisation of the natural resources must aim at satisfying the needs of man according to the carrying capacity of the environment. Following this, the Convention committed parties and stakeholders to undertake individual and joint action for the conservation, utilisation and development of the natural assets by establishing and maintaining their rational utilisation for the present and future welfare of mankind.

<footnote n="99">99 African Union 'African Convention on the Conservation of Nature and Natural Resources', https://faolex.fao.org/docs/pdf/mul45449.pdf (accessed 30 October 2024).</footnote>

<footnote n="100">100 CAB/LEG/24.1, https://au.int/sites/default/files/treaties/7763-treaty-0003_-_african_convention_on_the_conservation_of_nature_and_natural_resources_-_e.pdf (accessed 30 October 2024).</footnote>

<footnote n="101">101 Art II African Union Convention (n 100).</footnote>

<footnote n="102">102 As above.</footnote>