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4 Bahir Dar U. J.L. 229 (2013-2014)
Absence of a Derogation Clause under the African Charter and the Position of the African Commission

handle is hein.journals/bahirdjl4 and id is 241 raw text is: 



Absence   of a  Derogation   Clause  under  the  African  Charter  and   the
Position of the African Commission
                                                   Melkamu   Aboma  Tolera'

Abstract

       A  Derogation   clause is an  important  limitation on state's power
       during  a state of emergency when  human   rights are in a precarious
       situation. This article analyses the omission of derogation clause from
       the African  Charter. It examines  international and regional human
       rights instruments, the jurisprudences  of human   rights monitoring
       bodies  relating to issues of derogation and academic   writings. The
       findings of this article show the absence of a derogation clause in the
       African Charter  is a serious flaw that should be corrected.

Key  Words:  Derogation  Clause, African Charter, African Commission

Introduction

The  African  Charter on  Human and Peoples' Rights (hereafter ACHPR,
African Charter or Charter) unlike the other regional and some  international
human  rights instruments contains no derogation clause. The Charter neither
explicitly prohibits nor allows state parties to derogate from  their human
rights obligations under the Charter should they face exceptional  situations
justifying such action under international law.





* LLB  (Bahir Dar University, School of Law, Ethiopia), MA (Addis Ababa University,
Institute For Peace and Security Studies, Ethiopia), LLM (University of Groningen, Faculty
of Law, the Netherlands); Lecturer, Bahir Dar University, School of Law. I am grateful to
Alebachew Birhanu (Editor-in-Chief, Bahir Dar University Journal of Law), Dr. Antenor
Hallo de Wolf and the anonymous reviewers for insightful and valuable comments on earlier
drafts of this article. All errors remain mine. The author can be reached at:
m.a.tolera@alumnus.rug.nl

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