Document Type

Article

Publication Date

2010

Abstract

African states actively domesticate international law through judicial capacity-building in, for example, Botswana’s Industrial Court’s use of the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) and International Labor Organization conventions in the Moatswi v. Fencing Center case; Chief Justice of the Supreme Court of Ghana’s creation of the Human Rights Division of the Ghana High Court; and the institution of a sexual crimes division—Liberia’s Court ‘‘E’’—by the Liberian legislature. Moreover, high courts in Africa have demonstrated their willingness to adjudicate cases using regional and international law. For instance, in Kaunda v. President of the Republic of South Africa, the case turned on whether South African mercenaries who had been captured in Zimbabwe and threatened with prosecution and capital punishment after an unfair trial in a third state could claim diplomatic protection from South Africa, i.e., could claim a right to be extradited back to South Africa. In 1990 Benin’s Constitutional Court determined that the ACHPR was an ‘‘interpretive tool’’ for the constitution, including its ‘‘freedom to associate’’-related provision. In 2001 the Botswana High Court in Unity Dow employed international human rights law to challenge the constitutionality of its 1982 Citizenship Act, and in the 2000 Windhoek Prison case, the Namibian Supreme Court used the International Convention on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) to determine that chains or mechanical restraints violated a person’s right to dignity, and his or her right not to be tortured or subjected to degrading and inhumane treatment. While these courts and cases provide only a brief snapshot of the various ways in which international law has been and is being used by African judiciaries, it is important to note that this phenomenon is not exceptional. While few know about the impact of international law on domestic courts, much less is known about the normative force that truth and reconciliation commissions have played in fashioning and domesticating international rules. Hence the forgoing analysis will focus on the various and distinct ways in which the Liberian TRC not only applied and domesticated international law, but also how it made a normative contribution to the practice of truth commissions and transitional justice, namely the human rights protective regime. Before I embark in this intellectual exercise, however, it is important briefly to highlight the mission and mandate of the ITAC and TRC, as well as their use of international law to fulfill their mandate as quasi-judicial mechanisms.

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