The logo of the Pretoria University-based Centre for Human Rights shows a butterfly in full flight with a colourful map of Africa as its wings.
The logo could not have been more apt for the centre, which for 13 years has been leading the campaign to train young lawyers in human rights jurisprudence.
This year the centre, together with the University of Dar es Salaam, hosted 120 law students from 62 universities across the continent in a moot court competition in the Tanzanian capital.
As with the butterfly in the logo, this year’s competition marked the completion of an almost natural cycle. In keeping with tradition, students argued a moot human rights case before a fictitious African Court of Human and People’s Rights. They appeared before a judges’ panel made up of lecturers.
But at the back of everybody’s mind was the knowledge that the court is a reality — following ratification by the minimum 15 countries needed to bring it into force.
The court is also a direct consequence of the African Charter on Human and People’s Rights, which has been around since 1986.
The court will have jurisdiction only over the 15 nations that have ratified the protocol. It will have both advisory and litigious mandates and will be able to hear cases brought by African Union member states and African intergovernmental organisations.
This year’s moot court competition, therefore, had added significance, with the possibility that these young lawyers may soon find themselves in the ”real” court developing human rights in African jurisprudence.
The ”real” court may be new, but the issues it has to deal with — and those the moot court had to deal with — have either been the bane of African societies from time immemorial or are just starting to manifest themselves in a changing society.
At issue before the Dar es Salaam court was the plight of a nine-year-old girl orphan who had twice fled her uncle’s home to live on the streets.
A local NGO representing the girl avers that the state has a duty to provide institutional care for the girl and other orphans.
The child was denied the right to inherit her parents’ property because she is a girl (the primogenitor rule). Her parents’ property had been devolved to her uncle on the premise that customary law demands that such property be held in the patriarchal strand of the family.
The government’s response is that African culture requires that children need not be institutionalised because the concept of an African family includes uncles, aunts and other relatives. It denies that the primogenitor rule is discriminatory, saying it has always been part of African culture — besides the rule imposes on the heir to the property the responsibility to look after his female relatives.
Students have to compete in four sessions, twice each as defendants and as applicants.
In the finals prominent African and international jurists are called in as the ultimate arbiters of the disputes. This year the judges included the chairperson of the African Commission of Human and People’s Rights, Salamata Owodogo, and her predecessor, EVO Dankwa.
University of North West’s Professor Melvin Mbao, who has been to every moot court competition since its inception 13 years ago, says while the competition is a good training ground for young lawyers, it also gives Africa a chance to reflect on itself.
”The facts before this court may be fictitious, but the issues are very real. Discrimination against women, especially their right to inherit, are not hypothetical issues in many African countries,” says Mbao.
”The issue of institutional care for orphans is also real. The scourge of Aids and the increasing number of child-headed households, and the growing numbers of street children because of the disease, are also not hypothetical cases.”
At the end of the competition two countries from the English-speaking universities and two from the francophones proceed to the finals. But the real winner is the discourse in human rights law.