The Potential Impact of an International Human Rights Law Clinic on Issues of Access to Justice in Africa

Abstract: This paper will begin on the premise that international human rights law provides an efficient framework and a good forum to address issues of social and economic justice in a comprehensive and holistic manner, in the first place. Secondly, that this immense potential is under utilised because international and regional forums are inaccessible to the people whom they have been set up to protect. Thirdly, that these institutions are inaccessible as a consequence of, among other things, a legal profession that is predominantly either unable or unwilling (or both) to explore such strategies even though they might be able to address issues at their root in many instances. It will suggest that the establishment of an university based ''International Human Rights Law Clinic'' (IHRLC) which could be located in South Africa but one which will focus on the whole of Africa could impact substantially on the use of international and regional human rights instruments, norms and standards to increase access to justice to marginalised and under represented individuals and communities in Africa. This IHRLC could address the dual goals of providing legal and advocacy services to the beneficiary communities from Africa and training lawyers who operate mainly within domestic law clinics in Africa to work more effectively within domestic jurisdictions, regional and international forums. Finally, it is suggested that using clinical legal education could enhance this initiative, both with respect to the quality of learning and the impact on services rendered to the community. While traditionally the term access to justice has been linked to access to legal representation in criminal cases, this paper will suggest that the strategy of developing a specialised focus on certain specific areas related to socio-economic development could increase the impact in that issues could be delved into at its root and comprehensive strategies applied to ensure that the impact is not only felt by the client or within the country, but rather that the ripple effect is felt with the region as a whole. Furthermore, it could deepen the learning experience and provide the basic skills and strategies required that could then be used in a variety of different specialised contexts. The areas chosen for this discussion are Intellectual Property Rights, Human Rights and Sustainable Development and Access to Justice for people living with HIV/AIDS. Later on in the paper each of these areas will be discussed in detail, with both a contextual analysis and case study component. Ultimately, these chapters of the paper will conclude with opportunities that exist for the IHRLC to work within these fields. This paper is structured to at first provide the reader with an understanding of the concept of clinical legal education and university based law clinics. The paper begins with such an explanation to ensure that the reader appreciates the potential that such institutions have within the international and regional framework. Thereafter, it proceeds to provide an overview of democracy, human rights, civil society and clinical legal education in Africa. In the following two chapters it goes on provide a contextual analysis of the two target areas of a) Access to Justice for People Living with HIV/AIDS and b) Intellectual Property, Human Rights and Sustainable Development. In the next section, it looks at the international and regional system and outlines opportunities for non-governmental organisations and specifically for an IHRLC. Thereafter it looks at the constraints and challenges within the framework, with specific attention to the regional environment. It then moves on to suggest strategies that could be used, providing a list of steps that such an IHRLC could take in its work and concludes the argument after demonstrating the potential impact of such an institution.