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Factors that Impact on the Use of Thematic Instruments of the African Commission

Thus it can be observed that the Robben Island Guidelines, and other thematic instruments of the African Commission, are being used at the national and regional levels but not necessarily consistently or extensively. Although there would appear to be a marked preference to use binding instruments in litigation, the legal status of an instrument does not appear to be the primary factor in determining its use; rather other factors can be identified that are more significant.

Ownership

First, we would assert that creating a sense of ‘ownership’ over an instrument at the outset is important in influencing the extent to which it is subsequently used. Instruments need to be ‘nurtured’ in order to gain traction. Ownership can be created and demonstrated in a number of ways and be exercised by a range of actors. Ownership can be created through an inclusive, comprehensive, multi-stakeholder drafting process and demonstrated through the subsequent use by the adopting body such as the African Commission.[1] Ownership can also be exercised by states and CSOs through the use of soft law instruments in their activities. However, the African Commission has a poor record of taking ‘ownership’ over its instruments and this has a detrimental effect on the subsequent traction these instruments have gained. As has been noted the African Commission has a history of over-reliance on CSOs for its strategic development.6[2] The experience of the Robben Island Guidelines demonstrates that without a CSO partner providing strategic guidance and resources the African Commission has been unlikely to commit to and utilize an instrument or Special Mechanism. Unfortunately, the failure of the African Commission itself to exercise ownership over the Robben Island Guidelines and use them in a systematic way has had a detrimental impact on their visibility and perceived value among national stakeholders.

A further crucial factor in the development of ‘ownership’ for any instrument, binding or non-binding, is the drafting process from which it emanates.69 The Robben Island Guidelines are a good case in point. The Guidelines were the idea of a CSO who worked with the African Commission and a few select experts in a small drafting workshop to develop a text that was subsequently adopted by the Commission/0 At the time of drafting the Robben Island Guidelines there was no precedent for wider more inclusive consultations at the regional, sub-regional, and national levels prior to the development of a standard-s etting instrument.

Unfortunately, the limited range of actors involved in the drafting of the Robben Island Guidelines has arguably hindered the number of potential initial ‘promoters’ of the instrument and consequently growth of a wider sense of ownership being exercised over the Guidelines at the national level by governments, NHRIs, and civil society organizations.

In recent years, drawing on the experience of instruments such as the Robben Island Guidelines, it would appear that there is now a reconsidered strategy for developing standard-setting instruments. Recent documents adopted by the African Commission, such as the 2015 ‘Guidelines on Conditions of Arrest, Police Custody and Pre-trial Detention in Africa’, have emerged from drafting processes that have engaged more stakeholders within the region.[3] [4] [5] [6] [7] The anticipation is that more inclusive drafting processes will help to raise the visibility of the instruments, increase knowledge of the instruments, and create a sense of ‘ownership’ over the texts, thereby increasing the likelihood that these instruments will be used by relevant stakeholders in practice.

However, there are earlier indications that even with the inclusive process and broad range of consultations that took place around the drafting of the Guidelines on Conditions of Arrest, Police Custody, and Pre-trial Detention in Africa, traction at the national level requires an organization or institution to actively promote and push for the thematic instrument to be implemented on the groundV

These experiences appear to support the argument advanced by Shelton, namely that ‘the institutional structure and processes supporting the substantive norms are significant factors in compliance’,73 and that it is ‘the synergy between human rights bodies created by inter-governmental organisations and non-governmental organisations that leads to greater compliance’/4

Therefore it is proposed that for soft law instruments to gain a greater degree of traction at the national level, ‘active ownership’ must be demonstrated both at the regional and national levels.

  • [1] M. Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the UnitedNations Declaration on the Rights of Indigenous Peoples’, ICLQ vol. 58 (2009): 957—83 at 970.
  • [2] Murray in Evans and Murray (2008): 374. 3 Barelli (2009): 970.
  • [3] Invitation to Experts Meeting on the Development of Guidelines on Pre-Trial Detention, .
  • [4] 72 Interview with civil society representative, Apr. 2015.
  • [5] Shelton (2000): 460. 74 Shelton (2000): 462.
  • [6] 75 See e.g.: M. Bareli (2009): 957; A. Boyle and C. Chinkin, The Making of International
  • [7] Law (Oxford: Oxford University Press, 2007): 211—12; C. Chinkin, ‘The Challenge of SoftLaw: Development and Change in International Law’, ICLQ vol. 38 (1989): 850—66; Chinkin inShelton (2000): 26-37; Shelton (2000): 10-13.
 
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