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Murray, Long, Ayeni and Somé/Monitoring implementation of decisions
of such a decision by the Court? This is clearly not a desirable solution.
The African Court has had no real opportunity to explore this
relationship and its role in monitoring non-implementation of African
Commission decisions. Therefore, a more positive approach is possible:
it does have the potential, given the chance, to bolster the African
Commission’s reputation and status through upholding and
strengthening its decisions. Indeed, the African Court’s judgments so
far indicate that far from challenging the jurisprudence of the African
Commission, it has drawn heavily on it in its own interpretation of the
African Charter. Furthermore, the concern that States may not be
implementing the decisions of the African Commission because they
are not binding has not so far been borne out in the research we have
conducted: in the majority of situations that we have been examining
the State has not at all questioned the legal status of the African
Commission’s decision.52
Rather, our research concludes that the reasons why the decision or
judgment will be implemented are more complex. They include the
nature of the current political context, such as whether there has been
a change in government; the particularly sensitivity of the issues in the
decision or judgment in the light of what is happening in the State at the
time; what kind of particular remedies the decision or judgment
requires; and the practical feasibility of carrying them out. Sometimes
States may well have implemented, at least in part, a decision or
judgment but this is not information that is known publicly. Other
factors impeding implementation include consideration of the
specificity of the recommendations or orders made by the African
Commission and Court, and whether a correct balance was made
between providing clarity to the State on what precisely was required of
it to implement the decision, as against giving it the discretion to
determine what was the most appropriate way of implementing within
the context of the State.53
We recognise that detailed consideration of all of these issues relies
on some structural reform not only at the levels of the bodies
themselves but also at the AU. Equally, clarity on the respective roles
impacts on basic procedural issues. For example, research elsewhere,
supported by our preliminary findings, indicates that the visibility of
the decision and judgment as well as what the State may or may not
have done to implement it, is crucial to successful implementation.54
Yet, it is not always clear whose responsibility it is to publicise the
decision, inform others beyond the parties, and make national, regional
and international actors aware of what the State has done to
implement. As noted above, the African Court is providing some detail
52
There is one notable historical exception, Good v Botswana, Communication 313/
05, Combined 32nd and 33rd Activity Report: ‘the Government has made its position
clear; that it is not bound by the decision of the Commission’ para 24.
53
See also S Cardenas Conflict and compliance: State responses to international
human rights pressure (2007); C Hillebrecht Domestic politics and international
human rights tribunals: the problem of compliance (2014); B Simmons Mobilizing for
human rights: international law in domestic politics (2009); Open Society Justice
Initiative (n 1 above).
54
See eg Open Society Justice Initiative (n 3 above) 52, 77, 80, 83, 88, 92.
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