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LCP4807 assignment 2 semester 1 2024
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- University Of South Africa (Unisa)
LCP4807 assignment 2 semester 1 2024 Solutions
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LCP4807 SEMESTER II 2024International Human Rights Law
ASSIGNMENT 02
Submission Due Date: Monday, 29 April 2024 (Cut-off Time: 23h00)
The Republic of Liberte in the African continent has one of the most restrictive abortion laws in the world.
Liberte is a democratic country with the Constitution, which is a replica of the Constitution of South Africa,
1996. Liberte has ratified UN human rights instruments such as the UDHR, ICCPR (including its optional
protocols), ICESCR, CEDAW (including its optional Protocols). Liberte has also ratified the African Charter on
Human and Peoples’ Rights and all the other AU Conventions and Protocols including the Protocol to the
African Charter on the Rights of Women. Article 116 of the Liberte Penal Code of 1935 criminalises abortion in
all circumstances, except where abortion is performed to save the life of the woman. On the 13th of June
2020 Agibu, a 13-year-old girl was repeatedly raped by a 48-year-old man. She became pregnant and wanted
to terminate the pregnancy. She was denied an abortion in three hospitals and forced to carry the pregnancy
to term. The Constitutional Court of Liberte has repeatedly in previous judgments found that Article 116 of
the Penal Code was not unconstitutional. Appalled by the legal environment in Liberte, the African Centre for
Women Justice (ACWJ), an International Non-Governmental Organisation specialising on issues of
reproductive health, approaches you as an expert in human rights for a legal opinion. They would like to
institute legal proceedings against the Republic of Liberte before the African Court on Human and Peoples’
Rights (The African Court). Using the African Charter on Human and Peoples’ Rights, the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women (Women’s Protocol); the African
Charter on the Rights and Welfare of the Child (ACRWC), the Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW) and other relevant sources and cases, write a legal opinion for
ACWJ. Among others reflect on the following:
a) Procedural issues regarding admissibility of cases before the African Court.
b) The various rights infringed by Article 116 of the Penal Code of Liberte.
c) Remedies to be claimed.
In general- your arguments should indicate whether the action of Liberte is inconsistent with Liberte’s
international human rights obligations or not.
Instructions:
*Additional research is required for this question.
*Do not exceed 4000 words or 8 pages.
*Type on Arial, font 12 with 1.5 spacing; Footnotes to be Arial 10 with single spacing.
**Always acknowledge sources consulted and provide a brief bibliography. Do not plagiarize.
Solutions:
, 1 Introduction
The African Court on Human and Peoples’ Rights (the Court) 1is a continental court
established by African states to protect human and people’s rights in Africa. It complements
the functions of the African Commission on Human and Peoples’ Rights. The Court was
established under Article 1 of the Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights 2, (the
Protocol) which was adopted by the Member States of the then Organization of African Unity
(OAU) in Ouagadougou, Burkina Faso, in June 1998. The Protocol entered into force on 25
January 2004. To date, 34 Member States have ratified the Protocol establishing the Court.
Out of these, currently, only 8 States have filed a Declaration under Article 34 (6) of the
Protocol by which they accept the competence of the Court to consider applications filed by
individuals and NGOs.
2 Procedural issues regarding admissibility of cases before the African Court
Since the African Charter empowers the African Commission to receive communications from
states in what is termed ‘inter-state’ complaints, 18 and from non-state entities in other
communications (what is now termed ‘individual’ complaints), 19 there are two sets of
admissibility requirements for the submission of communications under the African Charter.
2A) a. The admissibility of inter-state communications
The African Charter on Human and Peoples’ Rights outlines procedures for the admissibility
of inter-state communications, primarily in Articles 47 to 50. These provisions offer two options
for bringing state communications.
The first option, detailed in Articles 47 and 48, requires a state alleging a violation to notify the
alleged responsible state through written communication. If the matter remains unresolved
1
AFRICAN (BANJUL) CHARTER ON HUMAN AND PEOPLES' RIGHTS
2
DR Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2004) (DRC
Communication).
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