In the Introduction to this book a question was posed whether the importance of soft law was waning. Certainly in the African human rights system there is no evidence to this effect, and there is still an apparent appetite to develop soft law instruments. This is demonstrated by the adoption in 2015 of the Principles and Guidelines on Pre-trial Detention and plans to develop further General Comments. Soft law instruments are very prominent within the output of the African Commission. Perhaps this is not surprising in light of the status of the African Commission as a quasi-judicial and monitoring body.
However, notwithstanding the prevalence of soft law instruments within the work of the African Commission, issues relating to a lack of implementation continue to dominate discussions on the effectiveness of the African human rights system as a whole. Clearly there would appear to be a problem with the degree of traction that these soft law instruments have at the national and regional levels.
It would appear, however, that the limited traction these soft law instruments enjoy to date cannot be attributed principally to their actual or perceived status as ‘soft law’ instruments. Rather there are other factors that are more significant in determining the degree to which these instruments will be used in practice and therefore the degree of influence they will assert. Issues such as the inclusivity of the drafting process, their content and perceived purpose, are all significant factors that impact on the level of ‘uptake’ these instruments enjoy once adopted by the African Commission. Perhaps most striking of all is the extent to which demonstrable ‘ownership’ is important in determining the degree of traction that an instrument can obtain. Ownership can be demonstrated by a range of national actors such as CSOs and NHRIs, and of course ideally states. However, without the African Commission demonstrating ownership over its own soft law instruments, by using them in a strategic and visible way in its procedures, these instruments may continue to face problems gaining legitimacy and traction at the national level.