61.The
Court further notes that, where
rights treaty,
international
a State
law obliges
becomes
it to take
a Party to a human
positive
measures
to give
effect to the exercise of the said rights.
62.Article 1 of the Charter on Human Rights stipulates that: “The Member States of
the Organization of African Unity, parties to the present Charter shall recognize the
rights, duties and freedoms enshrined
in the Charter and shall undertake to adopt
legislative or other measures to give effect to them”.
63. The Court therefore holds that the obligation on the part of State Parties to the
African Charter on Democracy and to the ECOWAS
establish
independent
and
impartial
implementing the aforesaid
national
Democracy Protocol to
electoral
bodies
is aimed
at
rights prescribed by Article 13 of the Charter on
Human Rights, that is, the right to participate freely in the Government of one’s
country, either directly or through freely chosen representatives in accordance
with the provisions of the law.
64. The European Court of Human Rights also came to a similar conclusion when
it had to determine,
for the first time, complaints
Article 3 of Protocol No. 1 to the European
regarding
the violation of
Convention on Human
Rights on
the right to free elections®.
65.In
view
Charter
of the
on
foregoing,
Democracy
Governance are human
the
and
Court,
the
in
conclusion,
ECOWAS
Protocol
holds
on
that
the
African
Democracy
rights instruments within the meaning
and
of Article 3 of
® article 3 of Protocol No. 1 to the European Convention on Human Rights reads as follows: “The High Contracting
Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure
the free expression of the opinion of the people in the choice of the legislature”.
The European Court indicated that the above-mentioned Article at first sight looks different from the other
provisions of the Convention and its Protocols which guarantee the rights. The Court however held that this
Article guarantees subjective rights such as the right to vote and to stand as a candidate in elections (Case of
Mathieu-Mohin and Clerfayt v. Belgium, Judgment of 2 March 1987, series A No. 113, pp. 22-23, §§ 46-51).
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