I This article is based on a chapter from Viljoen, F J., The realisation of human rights in Africa through inter-governmental institutions, unpublished L.L.D. thesis, University of Pretoria, 1997. A distinction is drawn between "organisations" and "institutions" The UN, OAU and SADC are examples of "organisations", while the treaty bodies, committees, other quasi-judicial bodies and judicial structures estab- lished in terms of the founding treaties are "institutions". 2 Four independent African states became members of the UN when it was founded in 1945. They were Egypt, Ethiopia, Liberia and the Union of South Africa. After Eritrea has joined the UN on 28 May 1993, the number of African member states now stands at 53. The Saharawi Arab Democratic Republic, declared independent unilaterally on 27 February 1976, has not been admitted as a UN member. 3 The OAU Charter was adopted in Addis Ababa on 25 May 1963, see e.g. (1964) 3 International Legal Materials, p. 1116. 4 The Saharawi Arab Democratic Republic is recognised as a member of the OAU. This recognition led to the withdrawal of Morocco from the OAU in 1984.
5 See art. 2(1 )(b) of the OAU Charter. For an evaluation of the OAU's mandate, see e.g. Chanda, A., The Organization ofAfrican Unity: An Appraisal , (1989 - 1992) 21 - 24 Zambia Law Jnl, p.l. 6 lnternatial Human rights protection has been established at three levels. At the glo- bal (or universal) level, various human treaties and implementation mechanisms have been created under the auspices of the UN. At the regional level, human rights instruments and institutions have been established under the auspices of the Council of Europe (in Europe), the Organisation of American States (in the Americas), and the OAU (in Africa). The third level is usually accepted as the pro- tection granted by the domestic legal system of a particular state. The focus here does not fall on any of these levels, but investigates whether human rights may be realised through institutions at a level between the domestic and the regional, here denoted the "sub-regional" level. 7 These sub-regional organisations sometimes include coutries outside Africa, as in the case of the Indian Ocean Rim Association for Regional Cooperation (see (1997) 9 RADIC, p.785). 8 An overview that includes only these four organisations cannot claim to be compre- hensive. There are numerous other sub-regional organisations in existence in Africa today, including the Economic Community of the Countries of the Great Lakes ("CEPGL"), the Southern African Customs Union ("SACU"), the Mano River Union, the Customs and Economic Union of Central Africa ("UOEAC") and the African and Mauritian Common Organisation ("OCAM"). See e.g. Elias, T.O., Africa and the Development of International Law, 1988, pp. 25 - 29.
9 See text at (1991) 30 International Legal Materials, p. 1241 and (1991) 3 RADIC, p. 792. 10 See Niyozima, N., African Investment Codes and African Economic Integration (1994) 6 ASICL Proc., p. 182 at p. 188 (n. 7). 111 It was held simultaneously with the 33rd summit of the OAU Assembly of Heads of State and Government. 12 See art. 6 of the Treaty establishing the African Economic Community. 13 See art. 28(1) of the Treaty establishing the African Economic Community: "During the first stage, Member States undertake to strengthen the existing region- al economic communities and to establish new communities where they do not exist in order to ensure the gradual establishment of the Community". 14 The African Charter was adopted on 17 June 1981, in Nairobi, and entered into force on 21 October 1986, OAU Document CAB/LEG/67/3/Rev.5, and reprinted at e.g. (1981) 21 International Legal Materials, p. 58. 15 It should be conceded that, as these institutions are directed at socio-economic goals, they aim indirectly at the implementation of socio-economic rights. Even so, the rights discourse, with all that follows therefrom, is not adopted.
16 The African Court of Justice ("ACJ") is one of the institutions provided for in the Treaty establishing the AEC. On the potential human rights mandate of this Court, see Peter, C. M., The Proposed African Court of Justice - Jurisprudential, Procedural, Enforcement Problems and Beyond, ( 1993) 1 East African Jnl of Peace and Human Rights, p. 117. 177 The supervisory or implementation mechanism provided for in the African Charter, the African Commission on Human and Peoples' Rights, has been criticised as weak and ineffectual. Efforts to supplement the African Commission with a judicial insti- tution has culminated in a number of draft protocols additional to the African Charter. In September 1995 a first draft was adopted in Cape Town, followed by a second draft adopted by a meeting of governmental legal experts held from 11 to 14 April 1997 at Nouakchott (see the report of the meeting at (1997) 9 RADIC 423, and the draft protocol at (1997) 9 RADIC 432). A later version of the Charter was adopt- ed by Ministers of Justice and Attorneys General of OAU member states on 12 December 1997 in Addis Ababa (see Draft Protocol to the African Charter on Human and Peoples'Rights on the Establishment of an African Court on Human and Peoples'Rights, OAU document OAU/LEG/MIN/AFCHPR/PROT(1) Rev.2). The OAU Assembly adopted the Protocol unanimously in June 1998. (See a discussion and text of final Protocol: Kirsch, N. "The establishment of an African Court on Human and Peoples'Rights", (1998) 58 Zeitschrift fiir ausliindisches Offentliches Recht und Volkerecht 713. 18 ° See, in general on these courts, Roberts-Wray, K. O. Commonwealth and Colonial Law, 1966, pp. 760-761, 783 and 220-221 respectively.
19 The name of this institution differs through the decades. It was initially called the Eastern African Court of Appeal. Its last appearance was as the Court of Appeal of East Africa. 20 Mvungi, S.E.A., Constitutional Questions in the Regional Integration Process: The Case of the Southern African Development Community with Reference to the European Union, D. Iur. Thesis, Institut fur Internationale Angelegenheiten, Hamburg, 1994 points out that trade networks, political dynamism and social min- gling had over centuries succeeded in establishing a common cultural identity and a "non-tribal common language", known as Kiswahili (p. 108). 21 See Elias, op. cit., p. 26 and Kato, L.L., The Court ofAppeal for EastAfrica: From a Colonial Court to an International Court, (1971) 7 East African Law Jnl., p. 1, p. 2. 22 Ibid. Zanzibar, Aden and Tanganyika were later added to this Court's jurisdiction. Nyassaland (Malawi) was excluded when the Rhodesia and Nyassaland Court of Appeal came to be established in 1947. At that stage the Court consisted of the Chief Justices and other judges of superior courts of the countries over which it had jurisdiction. 23 For background to these problems and the solutions offered, see Proposals for the Re-Organization of the Eastern African Court ofAppeal, 1948.
24 proposals for the Re-Organization of the Eastern African Court of Appeal. 1948, p. 3. 25 See (1971) 7 East African Law Jnl., p. 11. 26 In 1970 the permanent members of the Court were President Newbold, Vice President Duffus and Justice Spry. In the same year Mr Justice Lutta became the first East African to hold a position as permanent member of the Court. 27 By the Treaty of East African Co-operation signed at Kampala, and which entered into force in December 1967. It took over the assets and liabilities of the East African Common Services Organisation ("EACSO"), which was established in 1962. The EACSO was established to take over from the British East Africa High Commission (see Elias, op. cit., p. 26). 28 Another "tribunal" established under the EAC was the East African Industrial Court: see art. 84 of the EAC Treaty. 29 Schermers, H. C. and Blokker, N. M., International Institutional Law, 1995, p. 433. By May 1970 two cases had been referred to the Tribunal, which had at that stage not been constituted. 30 On its demise, see Mvungi, op. cit., p. 118.
31* For a recent manifestation of these links, see the Establishment of the Lake Victoria Fisheries Organisation between Kenya, Tanzania and Uganda (( 1997) 36 ILM, p. 667). 32 See also Muzan, A. 0., An East African Attempt at Federalism (1960 - 1964): A Study in Historical Jurisprudence (1994) 15 African Study Monographs, p.37, who argues that the efforts to establish a federation between the three states in the early 1960s failed because the Ugandan leader Okello was too protective of the role of the Kabaka of the Buganda. 33 See Kato (1971) 1 East African Law Jnl., p. 30. He considered the future if the Court to be "bright". 34 Also, before a one party state was established in 1968, the possibility was consid- ered, but rejected: See Report of the Presidential Commission, 1968, pp. 30-32. 35 S. 9 of the Appellate Jurisdiction Ordinance 55 of 1961, referred to by Kato (1971) 7 East African Law Jnl., p. 20. 36 S. 8(3) of the Appellate Jurisdiction Ordinance 55 of 1961, referred to in (1971) 7 East African Law Jnl., p. 20 3� See Kato (1971) 7 East African Law Jnl., p. 22.
38 See Kato (1971) 7 East African Law Jnl., p. 28. 39 Court ofAppeal for EastAfricaAnnual Reports, consulted in the Nairobi University Library, Africana section. Other data in this discussion is also based on this analysis. 40 The total number of appeals for some years are given as examples: 1961: 297 appeals; 1962: 300 appeals; 1963: 278 appeals; 1970: 289 appeals; 1971: 254 appeals; 1972: 231 appeals; 1973: 220 appeals; 1974: 195 appeals; 1975: 248 appeals; 1976: 199 appeals. In general, a slight decreasing trend, as well as a sig- nificant drop in numbers from 1975 to 1976, may be identified. The appeals origi- nating in the three national legal systems from 1970 to 1973, and in 1976 are as fol- lows : 1970: Kenya (76), Uganda (146), Tanzania (67); 1971: Kenya (81), Uganda (97), Tanzania (76); 1972: Kenya (76), Uganda (88), Tanzania (67); 1973: Kenya (90), Uganda (53), Tanzania (77); 1976: Kenya (95), Uganda (30), Tanzania (74). 41 The majority of cases heard by the Court were criminal cases. In 1962, for exam- ple, 201 of the 300 cases were criminal appeals. Of the criminal appeals before the Court in 1971, it dismissed 148, and allowed 39. This trend continued: In 1973, 107 criminal appeals were dismissed, and 46 allowed; in 1976, 100 criminal appeals were dismissed, and 55 allowed. The majority of criminal appeals involved murder convictions. In 1973, for instance, 91 murder cases were heard, and in 1976, 73. In general, the Court interfered more frequently in civil cases. Of the civil appeals heard in 1971, 32 were dismissed and 22 allowed. In 1973, the number of civil appeals allowed (25) exceeded the number dismissed (17). 42 (1971)) 7 East African Law Jnl, pp. 11 1 17.
43 See Republic of Uganda (1994), p. 24. 44 See United Republic of Tanzania (1979), p. 2. 45 Brooks, P. E. J., The European Economic Community and a Southern African Common Market in Legal Perspective, unpublished Ph. D. thesis, University of Exeter, 1993, p. 450. 46  E.A.C.A., p. 21.
47  E.A. 1. 48 P.4E-F. 49 See e.g. art. 10 of the African Charter, which provides for the right to freely associate as long as the individual "abides by the law". On these provisions, see e.g. Umozurike, U. 0., TheAfrican Charter on Human and Peoples'Rights, 1997, pp. 33-43. 50  E.A. 306 (perActing Vice-President Spry). 51 P 310 b-c. 52p 310 d.
53 See Roberts-Wray, op. cit., p. 783. 54 Roberts-Wray, op. cit., p. 783. Ibid? 55 West African Court of Appeal (Amendment) Order in Council, 1957.
56 Treaty reproduced in (1975) 14 International Legal Materials, p. 1200, entered into by Cote d'lvoire, Dahomey, the Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Togo and Upper Volta. (See the 1975 Treaty also in Awechue (gen. ed.), 1991, p. 82.) 57 See (1996) 35 International Legal Materials 660. The revised Treaty was done at Cotonou, Benin, 24 July 1993 (see (1996) 8 RADIC, p. 187). 58 Africa South of the Sahara, 1997, p. 107. 59 Art. 27 of the ECOWAS 1975 Treaty. 60 Art. 11(I) of the ECOWAS 1975 Treaty. 61 Art. 56 of the ECOWAS 1975 Treaty. 62 Final Communique of the Fourteenth Session of the Authority of Heads of State and Government, Abuja, July 1991 contained in (1991) 19 Official Journal of ECOWAS, p. 62. The Protocol is reprinted at (1996) 8 RADIC, p. 28.
63 Art. 11(2) of the ECOWAS 1975 Treaty. 64 Art. 9(3) of the Protocol. 65 Art. 4(g) of the revised ECOWAS Treaty. See also the Preamble par 4 of the revised Treaty. 66 On ECOMOG, see Weller, M., Regional Peace-keeping and International Enforcement: The Liberian Crisis, 1994, Ouguergouz, F. Liberia, (1994) 2 AYB1L, p. 208 and Kwakwa, E., Internal Conflicts in Africa: Is there a Right of Humanitarian Intervention? (1994) 2 AYB1L, p. 9. 67 Reprinted in full by Weller, op. cit., pp. 18 - 24. 68 See also the later ECOMOG force in Sierra Leone.
69 See sources in Weller, op cit., p. xxii. 70 Kwakwa (1994) 2 AYBIL, p. 26. 71 Ouguergouz (1994) 2 AYBIL, p. 208. 72 See (1993) 32 ILM (International Legal Materials), p. 267.
73 The SADC Treaty appears at (1993) 32 ILM, p. 116 and (1993) 5 RADIC, p. 418. 74 In September 1997, the Summit of Heads of State and Government approved the applications for membership of the Democratic Republic of Congo (the former Zaire) and the Seychelles. 75 Art. 4 of the SADC Treaty. 76 Art. 6(2) and 6(3) of the SADC Treaty. 77 See e.g. art. 5(1)(a) of the SADC Treaty. 78 Art. 32 of the SADC Treaty. 79 Art. 9 of the SADC Treaty. 80 Art. 16 of the SADC Treaty. 81 Art. 16(5) of the SADC Treaty.
82 Art. 16(2) of SADC Treaty. g3 Art. 23(2) of the SADC Treaty. 84 The SADC Tribunal, dated 18 February 1997. This document, as well as the Record of the First Legal Experts Meeting, has been supplied to me by Mr. Andre Stemmet, from the South African Department of Foreign Affairs, with whom I also discussed these documents. The SADC Ministers of Justice have already adopted a draft Protocol to the Treaty, establishing a Tribunal. This Protocol is expected to be adopted by the SADC Summit late in 2000. 85 See art. 6(1) and 6(2) of the SADC Treaty. 86 In terms of art. 4 of the SADC Treaty.
87 Record of the First Legal Experts Meeting held in Gabarone, Botswana, from 7 to 9 April 1997, par. 7.1. This view stems from a narrow interpretation of SADC's mandate, considerations of state sovereignty, the fact that government representa- tives had received the experts' report just before its discussion, and that they had not been mandated by their respective governments to negotiate about the inclusion of human rights in the proposed tribunal's jurisdiction. In my view it not correct to reject the inclusion of human rights in the SADC Tribunal's mandate only because such a course would require the development of a new, separate human rights trea- ty on the sub-regional level. Even if such a sub-regional is not elaborated, a future SADC Tribunal could adjudicate on the provisions of the African Charter. All the SADC member states had in any event already ratified the African Charter. The African Charter provisions may be applied by the SADC Tribunal on the basis of its general human rights mandate in the Preamble and in article 4. Alternatively, SADC may accede to the African Charter. 88 Mvungi, op cit., referred to the fact that SADC members are obliged to act in accor- dance with principles of democracy, human rights and the rule of law, but that the SADC Treaty "does not establish a regional human rights regime that will make these principles and ideals a reality" (p. 161). He therefore recommended that SADC conclude a "Human Rights Convention" and establish a "fully fledged Court of Justice with appellate jurisdiction on human rights and community law cases" (p. 161). He also made a clear link between regional integration, democratic gov- ernment and human rights: "Member states of the SADC cannot proceed towards any regional integration without ensuring that they respect and guarantee basic rights of their subjects. This commitment can only be guaranteed at regional level by introducing a regional convention on human rights to be applied by an indepen- dent regional human rights court" (p. 69). 89 It was held in July 1994, and was attended by NGOs, government ministers and par- liamentarians. This followed an NGO workshop organised by the SADC Secretariat in February. 90 ( 13 - 19 May 1996) West Africa, p.743.
91 One aspect pertaining to human rights that has been attended to by the Summit is the adoption of the 1997 Declaration on Gender and Development, and the adden- dum thereto, "The Prevention and Eradication of Violence Against Women and Children", adopted in Mauritius on 14 September 1998. 92 Like all of Africa, these countries have suffered under colonialism. But in Southern Africa colonialism took a singular form, as initial trading contacts were followed by substantive settling of Dutch, English, Portuguese and Germans communities. The presence of the non-indigenous groups lasted longer than in the most of Africa. Colonialism lasted longest in this region, and led to the severest national liberation campaigns, including armed struggle. Angola and Mozambique gained independence in 1975. Zimbabwe became independent only in 1980. Namibia came even later, in 1990. Finally, a democratic government was installed in South Africa in 1994. 93 See the quote from S v William 1995 (3) SA 632 (CC) at par 31: "The decisions of the Supreme Courts of Namibia and of Zimbabwe are of special significance. Not only are these countries geographic neighbours, but South Africa shares with them the same English colonial experience which has had a deep influence on our law; we of course also share the Roman-Dutch legal tradition".
94 The regional exchange of judicial officers is exemplified in the person of judge Mahomed, who was Chief Justice of Namibia and judge (and later Deputy President) of the South African Constitutional Court, before becoming that country's Chief Justice. Further examples are the previous Chief Justice of Zimbabwe, Dumbutshena, who acted as judge in the Namibian Supreme Court (see introductory pages of SA Law Reports 1994 2 to 1996 4). Since the latter part of 1994 judge Mtambanengwe has been seconded from the Zimbabwean to the Namibian High Court (see eg his judgment in Kauesa v Minister of Home Affairs 1996 4 SA 965 (NmS)). 95 All these countries, except Angola and Mozambique, have English as an official language. After its admission to the Commonwealth, English should gain ground in Mozambique. Angola is also reportedly considering to join the Commonwealth. 96 For example, the South African Law Reports series includes cases from Namibia and Zimbabwe, the South African Constitutional Law Reports series includes cases from Namibia, Swaziland and Zimbabwe. In one of the latest issues of the Butterworths Constitutional Law Reports series (1997 8) cases from Lesotho have also been included. Previously, cases from e.g. Namibia, Zimbabwe and Botswana have also been included in the BCLR series. 97 A political arrangement may provide the required forum to raise non-compliance by a state. Close links, especially economically, may serve as means of censuring a state that does not conform with regional requirements. An attempt has been made to include a Human Rights Charter into the SADC Treaty, and to establish a region- al human rights court. This has, so far, not reaped any fruits. Not only governments, but also civil society in the neighbouring states, may contribute in the process of effecting changing attitudes. (See Gebhardt (21 27 February 1997) Mail & Guardian at B1, on the actions of trade unions in South Africa in connection with the denial of trade union rights in Swaziland.) 98 See e.g. the references to the Namibian case Ex parte Attorney-General, Namibia: In re Corporal Punishment 1991 3 SA 76 (NmS) and the Zimbabwean cases S v Ncube 1988 2 SA 702 (ZS) and S v A Juvenile 1990 4 SA 151 (ZS) by Langa J in the South African case S v William 1995 3 SA 632 (CC) (in particular at par 31). ). 99 See the reference to Mbushuu v The Republic (Tanzania Court of Appeal, Criminal Appeal 142 of 1994, 30 January 1995) in S v Makwanyane 1995 3 SA 391 (CC) at paras 114-115.
See Dow v Attorney-General  LRC (Const) 623 (Botswana CA) followed in Rattigan v Chief Immigration Office Zimbabwe 1995 2 SA 182 (ZS). See also Salem v Immigration Office  1 LRC (Const) 355; 1995 4 SA 280; 1995 1 BCLR 78 (ZS). An earlier case dealing with this issue is the UN Human Rights Committee decision in Aumeeruddy-Cziffra v Mauritius (1981) 62 ILR 255. The question arises whether this island state is or may become part of a Southern African human rights vanguard. In terms of its human rights record, it may fit, but cultural differences may inhibit such a development. From a legal point of view, Mauritius is also a mixed or hybrid system. See the thoughtful discussion by Roux (1996) 8 RADIC755, in which reference is made to cases on this issue in the following SADC member states: Botswana, Namibia, South Africa, Tanzania, Zambia, Zimbabwe (see especially n44 at 762). The author could, no doubt, also have included case-law from Mauritius. 102 See, for example, the impact of the Unity Dow judgment. The Namibian High Court, in S v D 1992 1 SA 513 (Nm) introduced the difference between substantive (de facto) and formal (de iure) equality. In the course of appeal proceedings, the Court considered whether the existence and application of the "cau- tionary rule" in cases involving sexual assault violated the equality principle. The Namibian Constitution guarantees that no person '`may be discriminated against on the grounds of sex ...". On a formal level, Frank J accepted that the rule is applied equally to men and women who were victims of sexual assault. De facto, however, the overwhelming majority of complainants (up to 95% in the judge's experience) are female. This meant that the rule operated as a tool of discrimination against women. As the judge disposed of the case without basing his decision on this aspect, his remarks in this regard are obiter dicta. This is underlined when he concluded that the rule is "probably" contrary to article 10 of the Constitution. In Longwe v Intercontinetal Hotels  4 LRC 221 (Zambia) sex discrimination took the form of refusing women who were not accompanied by men, entrance to a bar of the Intercontinental Hotel in Lusaka. The conduct was found to be inconsistent with fun- damental rights guaranteed by the Constitution. The Unity Dow judgment and oth- ers discussed above on the discriminatory nature of citizenship provisions may also be invoked here. See further Student Representative Council, Molepolole College of Education v Attorney General of Botswana, Civil Appeal 13 of 1994, judgment delivered on 31 January 1995 and Mfolo v Minister of Education, Bophuthatswana 1992 3 SA 181 (B), dealing with discrimination on the basis of pregnancy. The Supreme Court of Zimbabwe addressed the constitutionality of a statutory pro- vision prohibiting public processions without obtaining a prior permit in In re Munhemeso 1995 1 SA 55I (ZS). It did, as far as its approach to interpretation was concerned, refer to the Botswana Court of Appeal judgment in the Dow case. The similarity of constitutional provisions in Botswana and Zimbabwe prompted the
Footnote continued Zimbabwean Supreme Court to approve and apply a decision of the Botswana High Court of Appeal in In re Munhemeso. Gubbay CJ remarked as follows: "In Dow v Attorney-General  LRC (Const) 623 (CA, Botswana) Amissah JP considered the identically worded s. 3 of the Constitution of Botswana. He viewed it, most aptly, as 'the key or umbrella provision' in the Declaration of Rights under which all rights and freedoms must be subsumed; and went on to point out that it encapsulates the sum total of the individual's rights and freedoms in general terms, which may be expanded upon in the expository, elaborating and limiting sections ensuing in the Declaration of Rights. This analysis of the scope and impact of s 3 is particularly apposite to that of s 11 in the Constitution of Zimbabwe, and I respectfully associate myself with it". Conceding that there may be numerous reasons why no reference was made to the earlier in the later case (difficulties related to access, non-publication of law reports, the short time span between the two judgments, for example), it exempli- fies an unexplored opportunity to seek common answers to common problems. 105 See e.g. Langa J's invocation of the Tanzanian Court of Appeal's judgment in DPP v Pete  ] LRC (Const) 553 (Tanz CA) in S v Makwanyane 1995 3 SA 391 (CC) at par 224: "the rights and duties of the individual are limited by the rights and duties of society''. 106 See Amnesty International, Southern Africa: Politicing and Human Rights in the Southern African Development Community, 1997, p. 10. 107 One of its stated objectives is to '`promote and enhance the development of demo- cratic institutions and practices within members states, and to encourage the obser- vance of universal human rights as provided for in the Charters and Conventions of the OAU and United Nations" (see Amnesty International, op. cit., p. 10). See also Gyan-Apenteng and Mwananyanda "The Birth of Sahringon" (April - May 1997) African Topics, p. 22. 108 See par. 10 of Communique of the Summit, 2 October 1996, Luanda, Angola. 109 P 10. 110 The account of the Parliamentary Forum is based on information in (1997) 34 Africa Research Bulletin, p. 12636.
111 See also Amnesty International, op. cit., p. 14, for a recommendation that the Heads of State should make a declaration affirming their commitment to human rights at their August 1997 summit. 112 On its establishment, see Gyan-Apenteng and Mwananyanda "The Birth of Sahringon" (April - May 1997) African Topics, p. 22. 113 See (1994) 33 ILM, p. 1067. 114 See art. 3 of the COMESA Treaty. 115 The PTA wound itself up on 5 November 1993 and established COMESA in its place. The PTA comprised 23 countries in East and Southern Africa ((1994) New African Market Bulletin, p. 23). 116 The full list illustrates the degree of overlap in membership between SADC and COMESA. The states that are members of both organisations are Angola, Malawi, Mauritius, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe (see Heiman, M. R. A. The Drive Towards Regionalisation in Southern Africa: Fictional Reality ((1997) 9 RADIC, p.639). 117 See art. 19 of COMESA Treaty.
118 Arts. 20, 21 of the COMESA Treaty. 119 Advisory jurisdiction is regulated by art. 32 of the COMESA Treaty. 120 Art. 34(3) of the COMESA Treaty. 121 In terms of art. 35 of the COMESA Treaty. � 22 See art. 26 of the COMESA Treaty. � 23 See news release by Panafrican News Agency. 124 Ibid. 125 Art. 6(h) of the COMESA Treaty. 126 Art. 6(g) of the COMESA Treaty. 12� Art. 6(e) of the COMESA Treaty.
128 See, in general on the Maghreb Arab Union, El Kahiri, L'Union du Maghreb Arabe ( 1994) 2 AYBIL, p. 141. 1z9 Art. 13(2) of the Marrakech Treaty. 13o See El Kahiri, op. cit., p. 146.
131 As in the case of the COMESA Court of Justice. 132 See, on this possibility, Benedek, W European and African Perspectives on Human Rights in Theodoropoulos, C. (ed), Human Rights in Europe and Africa: A Comparative Analysis, 1992, p. 28, who foresaw such a possibility in Southern Africa. In his view, this could be accompanied by a revision of the Charter to fulfil the needs of the sub-region. 133 Similar options are open to the European Community to accede to the European Convention.
134 See e.g. Nold v Commission  ECR 491, Rutili v Minister of the Interior  ECR 1219, and Hauer v Land Rheinland-Pfalz  ECR 37727. See also Kremzow vAustrian State  ECR 1-2637: "...where national legislation falls within the field of application of Community law the Court, in a reference for a pre- liminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that legislation with the funda- mental rights - as laid down in particular in the Convention - whose observance the Court endures. However, the Court has no such jurisdiction with regard to national legislation lying outside the scope of Community law" (par. 15). 135 Opinion 2/94 (Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms)  ECR 1-1759, par. 33. 136 In terms of art. 63(1) of the Charter. 137 See e.g. art. 84(1) of the 1993 ECOWAS Treaty, which provides that member states may "among themselves" conclude agreements with other international organisa- tions, provided that the agreement is not incompatible with the provisions of the Treaty. See also art. 24(1) of the SADC Treaty.
8 See e.g. art. 10 of the Charter, which provides that every individual has the right to free association "provided that he abides by the law".
l39 See Heiman, op. cit., p.639.
140 See art. 68 of the Charter: a simple majority may approve an amendment. 141 This could be ensured by making the existence of a democratic system of govern- ment and observance of human rights criteria for admission to membership of the sub-regional organisation. In this regard, it seems that the admission of the Democratic Republic of Congo (DRC) was premature.
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THE REALISATION OF HUMAN RIGHTS IN AFRICA THROUGH SUB-REGIONAL INSTITUTIONS