Friday, January 29, 2016

Kofele-Kale on Asserting Permanent Sovereignty Over Ancestral Lands

Kofele-kaleNdiva Kofele-Kale (SMU) has posted Asserting Permanent Sovereignty Over Ancestral Lands: The Bakweri Land Litigation Against Cameroon (Annual Survey of International & Comparative Law) on SSRN.  Here's the abstract:

The Article focuses on the recently concluded Bakweri land case against Cameroon in the African Human Rights Commission. The Article uses this litigation as the basis for a re-examination of a host of issues relating to the enforcement of human rights, especially land rights, in postcolonial countries making the slow transition from single-party authoritarian rule to multi-party democratic states. More importantly, it takes a fresh look at the exhaustion of local remedies rule. It asks the relatively simple question: whether an indigenous people seeking to reclaim and assert permanent sovereignty over ancestral lands, forcibly expropriated from them during the period of colonial occupation and subsequently vested in the post-colonial State, should be required to comply with the exhaustion of domestic remedies rule in a country where the rule of law is in its infancy and where the judiciary is neither independent nor impartial.The Article argues that the exhaustion rule should be dispensed with where it is demonstrably clear that local courts are notoriously lacking in independence; there is a consistent and well-established line of precedents adverse to the claimant; and the respondent State does not have an adequate system of judicial protection that complainant can rely on. The Article concludes by advocating for the broadest interpretation possible of the exhaustion rule in order to (a) level the playing field for both parties-the defenseless citizen whose fundamental human rights have been violated and the powerful State responsible for the violation; (b) preserve the right of individual petition now entrenched in all international human rights instruments; and (c) give true meaning to the principle of equality-of-arms upon which all human rights contests are anchored.

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