Since the adoption of the Universal Declaration of Human Rights in 1948, there has been significant progress in the recognition and protection of human rights around the world. The international community has, since 1948, adopted several treaties, which impose obligations on States Parties to make certain that the human and fundamental rights of their citizens are recognized and fully protected. Although human rights are considered the domain of international law, international legal scholars have argued that national governments—that is, the governments of States Parties—must function as the mechanisms for enforcing international human rights law. However, in order for national governments to enforce international human rights law, each country that ratifies an international human rights treaty must incorporate the treaty into its national constitution and hence, create rights that are justiciable in domestic courts. Thus, an African country can, through its constitution, cast away any doubts regarding whether international law, including customary international law, is law within its jurisdiction. This article notes that in African countries whose constitutions do not expressly define a law of reception for international law, it is still possible for domestic courts to employ international law and comparative case law in the interpretation and adjudication of cases involving human rights. After examining cases from several African countries to determine the extent to which domestic courts have utilized international law and comparative law sources in their decisions generally and interpretation of national constitutions in particular, the article then examines two cases from the Constitutional Court of South Africa involving socio-economic rights. It is determined that, even where African States have not yet domesticated international human rights instruments and created rights that are justiciable in domestic courts, progressive judiciaries can still enhance the recognition and protection of human rights by using international law as an interpretive tool in their legal adjudications. Nevertheless, the ultimate goal must remain the domestication of international human rights instruments to create rights that are justiciable in domestic courts.
John Mukum Mbaku,
The Role of International Human Rights Law in the Adjudication of Economic, Social, and Cultural Rights in Africa,
8 Penn. St. J.L. & Int'l Aff.
Available at: https://elibrary.law.psu.edu/jlia/vol8/iss2/8