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Trends in the Use of Thematic Instruments of the African Commission

This section draws on the conclusions of a four-year research project by the authors which used the Robben Island Guidelines as a case study to identify how soft law instruments of the African Commission are used in practice at the regional and national levels. The Robben Island Guidelines intended to elaborate states’ obligations in relation to Article 5 of the African Charter which, among other issues, prohibits torture and other ill-treatment.35 The Robben Island Guidelines make an interesting case study for a number of reasons: they exemplify the dual purpose of the thematic instruments of the African Commission, namely to influence not only state practice but that of the African Commission itself; their drafting process illustrates the role of CSOs in the development of thematic instruments; they led to the creation of a Special Mechanism with a specific mandate to promote their implementation; and there is some evidence they have been used in practice at the national and regional levels.

In order to examine the use of the Robben Island Guidelines in practice, the research methodology included a review of all relevant instruments of the African Commission, other African Union organs, and the UN in order to see what instruments have been referenced by these bodies and in what context. A series of semistructured interviews were undertaken with stakeholders, 3fi and a number of high-level seminars and workshops were held to explore related themes.37

By tracing in depth the use of one thematic instrument in practice the authors were able to identify some notable trends in the use of these soft law instruments generally, as well as factors that influence their use in practice.

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