Exception as norm: the local remedies rule in the context of socio-economic rights in the African human rights system

Abstract

It is widely acknowledged that rights and freedoms guaranteed in the African Charter on Human and Peoples' Rights are justiciable. However, any complaints about violations of the Charter's guarantees are admissible before the African Commission on Human and Peoples' Rights only if they are lodged after local remedies available in the domestic legal system of the implicated state are exhausted. The local remedies rule can be bypassed, however, when such remedies are unavailable, inadequate, ineffective or unduly prolonged. This article argues that normative incompatibility between the charter's socio-economic rights undertakings and the status of the rights in domestic legal systems in numerous local jurisdictions in Africa makes it apparent that there is a clear lack of necessary preconditions for justiciability of and remedies to this category of rights. Local remedies to socio-economic rights in such jurisdictions could simply be lacking or are ineffective or inadequate. Thus, the application of the local remedies rule could well be less relevant to socio-economic rights complaints at the regional level and hence constitute an exception in relation to numerous African States. Consequently, direct invocation of charter-based remedies, supposedly an exception, may supplant the rule until and unless state parties to the charter ensure normative compatibility between their charter-based undertakings and domestic legislation and practices relative to socio-economic rights enshrined in the charter.