With a view to showing that courts do not have the power to validate native law and custom, this article highlights the different roles assigned to the assent of the people governed by native law and custom, and to the court called upon to determine its judicial enforceability. It argues that customary law is validated by the assent of the people and not by courts, and that the tests contained in different statutes by which courts are permitted to intervene in the regime of customary law are tests of enforceability and not tests of validity. As a result, it argues that the term “validity test” is misleading when used in relation to the power of courts to determine the enforceability of native law and custom, and should therefore be discarded.
An examination of universal criminal jurisdiction (UCJ) utility reveals objections and obstacles. The African Union (AU) and many states are wary of its ascendancy. The gap between UCJ and its application is wide. Nevertheless, to prevent impunity for international crimes, a balanced and nuanced approach to UCJ is inevitable.
The rule of exhaustion of domestic remedies is an integral part of the right of individuals to bring international claim against a State. This rule is expressly required in the African Charter on Human and Peoples' Rights and the Protocol of the African Court on Human and Peoples' Rights. Nevertheless, as the various types of domestic remedies and the various circumstances in which they are pleaded by respondent States are still unfolding, the jurisprudence of the African Court is understandably at an infantile stage and continues to undergo development and refinement. This short comment examines the view of the African Court, following that of the African Commission on Human and Peoples' Rights, that non-judicial remedies are not valid remedies that need to be exhausted before claims are brought before the African Court by individuals. It is argued that this is an unduly wide and indiscriminate proposition that would have the effect of unjustifiably excluding administrative remedies that may have effectively remedied a breach if approached by individuals before coming to the African Court. It was consequently argued that there is need for reconsideration now before the view becomes too entrenched.
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