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5: Understanding The African Charter on Human and Peoples' Rights

How does the African Charter interact with or enrich the international law project?
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A boy in Banjul, where the charter was written. Photograph by doevos.

I – INTRODUCTION

The African Charter on Human and Peoples’ Rights was adopted in June 1981 and entered into force in October 1986. Alternatively referred to as the Banjul Charter, it is an international human rights instrument created to protect the human rights and basic freedoms of people living on the African Continent. Although the need for the Charter has been questioned in light of the already universal application of United Nations instruments for upholding human rights, its creation follows in footsteps of other regional bodies in the creation of their own unique regional human rights systems, notably the European Convention on Human Rights (ECHR). Since its creation, the Charter has had significant normative impact on the status of human rights on the African continent.

II – PASSING THE CHARTER

Although human rights have now been enshrined in legal instruments at all levels - international, regional and national - when the proposal for a regional African instrument for the protection of human rights was first articulated at the first Congress of African Jurists, held in Lagos, Nigeria in 1961, it was not widely embraced. Whilst the Congress adopted a declaration – referred to as the ‘Law of Lagos’ – calling on African governments to adopt an African convention on human rights with a court and a commission neither the colonised or newly-decolonised states lacked the capacity to commit to such an ambitious undertaking.

Following the establishment of the Organisation of African Unity (OAU), the issue received further consideration at the first United Nations Seminar on Human Rights in Developing Countries[1] in 1966. In 1979, the United Nations General Assembly (UNGA) adopted Resolution 34/171 on regional arrangements for the promotion and protection of human rights that inter alia requested the UN Secretary General to explore the possibility of holding a seminar in developing regions to discuss the issue[2].

From November 28 to December 8, 1979, a conference of twenty African experts was organised, presided over by late Judge Kéba M’baye in Dakar, Senegal. In what proved to be the document’s overarching philosophy, President Senghor’s opening address urged the experts to use their imagination and draw inspiration from African traditions, keeping in mind the values of civilisation and the real needs of African people, the right to development and the duties of individuals[3]. The Committee prepared an initial draft of the Charter after about 10 days of deliberation.

A scheduled conference to adopt the draft Charter, due to be held in Ethiopia, could not take place due to hostility from certain African governments towards regional human rights protection in Africa. In the face of such hostility, and at the invitation of the OAU Secretary-General, the President of Gambia convened two Ministerial conferences in Banjul, The Gambia. In January 1981, at the second session of the Ministerial Conference in Banjul, a draft text, composed of 68 articles[4], was completed.

This draft text was submitted to the OAU Committee of Ministers during the 37th OAU session held in Nairobi, Kenya in June 1981. The ministers, unable to agree, suggested changes - especially in relation to Article 45 and the power of the African Commission on Human and Peoples’ Rights[5] to intervene in the internal affairs of member states. However, the document was submitted without amendments and adopted by the OAU Assembly on June 27, 1981. After ratifications by the absolute majority of member states of the OAU, the Charter came into force on October 21, 1986.

On the difficulties in passing the Charter, Ouguergouz notes that:

“According to Balanda, this desire to succeed could be ascribed to a specific event; and he observed that, when the news came that the delegates from Upper Volta had been arrested shortly after attending the Banjul meeting, held in the immediate aftermath of a change of political regime in their country, the need not just to emphasise human rights but to focus on their actual enjoyment appeared in a fresh light; the chief outcome of this was to speed up the second Banjul meeting, which ended before the scheduled date.”[6]

III – UNIQUE FEATURES OF THE AFRICAN CHARTER

It is logical to question the need for an African human rights constellation when United Nations instruments have universal application. In 1981, when the African Charter was adopted, the core international treaties on human rights (Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR)) were already in place. Whilst some have argued that the priority for African States should have been to join a universal regime and implement its measures effectively instead of starting a new one, there are, however, four features of the African Charter that make it unique and necessary for the continent.

i) Third generation rights

Firstly, the Charter enshrines ‘third generation’ rights or ‘rights of solidarity’ (see Art. 22 Right to Economic, Social and Cultural Development; Art. 23 Right to National and International Security and Peace; and Art. 24 Right to a General Satisfactory Environment). Traditional or “first generation” rights place the individual at the centre of discourse. In the Charter, this focal point is expanded to cater for the collective rights of the community – the word “peoples” functions as a legal entity with actionable rights, in accordance with Article 19.

Although the text of the Charter leaves the term “peoples’ rights” open - possibly in recognition of the diversity of the groups it could accommodate - the Commission has developed jurisprudence on a case-by-case basis. It has determined whether groups affected by human rights violations are entitled to any right as a people[7], and it has already had the opportunity to sanction their violation[8].

In other international instruments, especially in the resolutions of the United Nations General Assembly, these types of ‘third generation’ rights are rarely capable of being construed as legally binding[9]. The status granted to these third generation rights in the African Charter is unique.

The indivisibility of ‘third generation rights’ was recognised in the case of SERAC v Nigeria, para 68 which states that ‘clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective’[10].

ii) True indivisibility and interdependence of rights

Secondly, when one looks at the drafting context of the international bill of rights, it is quite exceptional the way in which the African Charter juxtaposes previously compartmentalised rights: on one hand, civil and political rights are brought together with economic, social and cultural rights, and, on the other hand, individual and collective rights viewed in tandem.

The international bill of rights was originally intended to be one comprehensive document, but the Cold War context brought about regional bloc voting - particularly between the West and Communist states and three separate documents were created– the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The African Charter stays true to the purported indivisibility and interdependence of all sets of human rights. Accordingly, all rights are contained within the same instrument and whenever there is a conflict between two or more rights, a balance is struck between them.

iii) Rights and duties together

Thirdly, the Charter is more specific about the implementation of rights by stating both the rights and duties of the individual. Although most definitions of law commonly agree that rights also entail duties, no human rights instrument elaborates on the side of duties. The African Charter’s approach is excellent in this respect. While the African Commission has not had a chance to make any finding on the merits in relation to the duties, domestic courts have. For instance, in the case of d’Almeida Gaétan and Hilaire before the Constitutional Court of Benin, it was found that two children have violated their duty vis-à-vis their parents by physically abusing them[11].

iv) Specific emphases

Fourthly, the Charter provides a specific emphasis on development, decolonisation, and racial discrimination. Although in recent times this has lost much of its urgency, there are still instances where it should help in the protection of minority rights – notably in the right to self-determination in the Western Sahara and Cabinda.

IV – ADDITIONAL INSTRUMENTS

African States have developed four other instruments to complement the substantive legal framework of the African Charter. These instruments focus on specific groups of people and areas of life, which are deemed to be particularly vulnerable to human rights abuses. Rights are articulated in more detail to offer additional protection.

(i) The African Charter on the Rights and Welfare of the Child, 1990;[12]

(ii) The Protocol on the Rights of Women in Africa, 2003;[13]

(iii) The African Charter on Democracy, Elections and Governance, 2007;[14] and

(iv) The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 2009.[15]

Another instrument, which also complements the African Charter, is the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. However, it was adopted in 1969, before the African Charter.

These instruments substantiate the African Charter and offer alternative mechanisms for enforcement.

V – ENFORCEMENT REGIME

The African Charter had initially only envisaged the existence of the African Commission to operate in tandem with the domestic institutions of each State party. However, additional organs were later set up to further enforcement capabilities- either through a specifically designed instrument such as the African Court or through some of the additional instruments mentioned above, such as the African Committee of Experts on the Rights and Welfare of the Child.

i) African Commission on Human and Peoples’ Rights

The original organ, the African Commission on Human and Peoples’ Rights[16] was established in 1989 and is composed of 11 members (Art. 31). It has a twofold mandate: promotion and protection (Art. 30).

Promotion entails advocating human rights in Africa and ensuring that the instrument and its provisions are well known. The Protective mandate is implemented through the reporting regime and the communication practice.

a) Reporting

Under the reporting regime, each State party has the obligation to submit a report every two years (Art. 62). However, the African Charter does not specify which organ must receive the report or the precise mandate of the recipient organ.

During its 24th Ordinary Session, the African Commission’s suggestion that states submit their reports to it for assessment and recommendation was approved by the AU Assembly[17]. In practice, the majority of the States submit their reports late and the African Commission lacks any enforcement mechanisms to ensure any effective repercussions - except by naming the states.

b) Communications

Communications can emanate from states (Article 47) or from others present at Ordinary Sessions (Article 55). The African Commission is empowered to hear these but cannot act with any force unless it goes through the chief organ of the continental organisation, the Assembly of the African Union.

While communications by states is part of classical international law, “communication other than those of State Parties” in Article 55 is quite vague. The African Commission has adopted a broad approach and has interpreted the article as referring to communications submitted by organisations registered with it and individuals.

However, this approach is limited because any decision by the African Commission on a communication will still be submitted to the Assembly. Decisions within the Assembly are usually derived through a consensus and, in this case, it means that the respondent state would have the right to oppose any authorisation for publication. Even after publication, the African Commission still lacks mechanism to follow up and to ensure compliance.

ii) The African Court

This flaw has been corrected with the Protocol establishing the African Court on Human and Peoples’ Rights (African Court) adopted in 1998[18] and in force since January 2004. While the African Commission is a quasi-judicial organ, the African Court is a fully-fledged court with 11 judges - the first bench was elected in January 2006 and sworn in a few months later[19].

The African Court is mandated by the Protocol to determine cases brought before it by any state party, the African Commission, any African intergovernmental organisation, but also civil society organisations and individuals (Art. 5 of the 1998 Protocol).

In the case of civil society organisations and the individuals, and in contrast to the procedure under the African Commission, the respondent state needs to make a declaration authorising the application (Art. 34(6) of the 1998 Protocol)[20].

The Court is also mandated to provide advisory opinions upon the request of any member state of the African Union, the African Union itself, any of its organs, or any African organisation recognised by the African Union (Art. 4 of the 1998 Protocol).

iii) The African Court of Justice and Human Rights

At the time when the Protocol establishing the African Court entered into force in 2004, the serving Chairperson of the African Union and President of the Federal Republic of Nigeria, Olusegun Obasanjo, suggested that the Court should be merged with the AU’s African Court of Justice (ACJ) to cut costs. The ACJ was the main judicial organ of the African Union dealing with interstate disputes. The two courts merged to create the African Court of Justice and Human Rights in July 2008 in Sharm El-Sheikh, Egypt[21]. The merged Court is composed of 16 Judges assigned to two sections: general affairs and human rights.

This institutional judicial framework might face new challenges following plans to extend the jurisdiction of the Court to include criminal matters. This development is directly related to the criticism of the International Criminal Court – primarily for its focus on Africa and the indictment of Omar Al Bashir. A draft protocol has been submitted to the Assembly of the African Union but during its summit in July 2012, the Assembly postponed its adoption until further information from the Commission is received[22].

iv) African Committee of Experts on the Rights and Welfare of the Child

The African Commission is further supplemented by an African Committee of Experts on the Rights and Welfare of the Child (ACERWC)[23]. In July 1990, the OAU adopted the African Charter on the Rights and Welfare of the Child, which establishes this Committee (Art. 32 of the 1990 African Charter). This Charter entered into force on 29 November 1999 and the first 11 members of the Committee were elected in July 2001. Forty-six States have already ratified the Charter.[24]

The mandate of the Committee of Experts is to monitor the implementation of the Charter, both through promotion and protection, with the possibility for civil society organisations and individuals to submit individual applications. Until now, the Committee has issued only one decision where it found that Kenya violated various rights established in the 1990 Charter[25].

All these institutions support the African Commission to ensure protection of human rights in Africa.

VI - CONCLUSION

All 53 Member States of The African Union have ratified the African Charter on Human and Peoples’ Rights. This makes it the most important human rights instrument on the continent. Only Morocco, which withdrew from the continental organisation in 1983, is not a member state. While its substance is determined by Member States, like every other international law instrument, its life and application does not depend exclusively on the States. It is, therefore, the duty of every African to ensure compliance, using as needed the various enforcement mechanisms in place. If these conditions are fulfilled, the rule of law and the protection of human rights on the continent will improve.

For more information about the course please read our introductory blog post.

Think Africa Press welcomes inquiries regarding the republication of its articles. If you would like to republish this article, provide feedback, ask or answer questions or request new content please contact rom.bhandari@thinkafricapress.com or get in touch via Twitter at @romromromTAP.

QUESTIONS TO CONSIDER:

1. Why has the need for the African Charter on Human and Peoples’ Rights been questioned?

2. What makes the Charter unique from other international instruments designed to protect the human rights of individuals?

3. Why are ‘third generation rights’ so important for the protection of human rights on the African continent?

4. How does the African Commission on Human and Peoples’ Rights fulfil its mandate? How effective is it at doing so?

5. In what way is the African Court of Justice and Human Rights being challenged? What are the likely effects on the protection of human rights?


[1] United Nations, Seminar on Human Rights in Developing Countries, Dakar, 8-22 February 1966, New York: United Nations, 1966.

[2] A/RES/34/171 (1979).

[3] See: Ouguergouz F., The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York, 2003, pp. 377-378, referring to the Address delivered by H.E. Mr. Leopold Sedar Senghor, President of the Republic of Senegal, OAU DOC CAB/LEG/67/5.

[4] “African Charter on Human and Peoples’ Rights”, OAU Ministerial Meeting on the Draft African Charter on Human and Peoples’ Rights, Banjul (The Gambia), 7-19 January 1981, OAU DOC CAB/LEG/67/3/Rev. 5

[5] Ouguergouz F., The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York, 2003, p. 47. The objective here was “to avoid giving the impression that the Commission could interfere in the internal affairs of OAU Member States.”

[6] Ouguergouz F., The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York, 2003, p. 46.

[7] African Commission on Human and Peoples’ Rights, Communication 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights (on behalf of Endorois Welfare Council) / Kenya, November 2009.

[8] African Commission on Human and Peoples’ Rights, Communication 155/96 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, October 2001. In that decision, the Commission found that the Federal Government of Nigeria has violated Article 24 and invited it “to ensure protection of the environment, health and livelihood of the people of Ogoniland.”

[9] See for instance: A/RES/39/11 Declaration on the Right of Peoples to Peace.

[10] African Commission on Human and Peoples’ Rights, Communication 115/96 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights/Nigeria, October 2001.

[11] Republic of Bénin, Constitutional Court, Decision DCC 96-024, 26 April 1996 (in French only: http://www.cour-constitutionnelle-benin.org/doss_decisions/960424.pdf). See also our analysis in Tavernier P. (dir.), Receuil juridique des droits de l’homme en Afrique 1996-2000, Bruylant, Bruxelles, 2002, p. 651.

[12] See the text of the Charter on the website of the African Union: http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_Wlefare_of_the_Child_AddisAbaba_July1990.pdf.

[13] See the text of the 2003 Protocol on the website of the African Union: http://www.au.int/en/sites/default/files/Protocol%20on%20the%20Rights%20of%20Women.pdf. As of 14 August 2012, 33 States have ratified the Protocol. See the status on ratification on the website of the African Union: http://www.au.int/en/sites/default/files/Rights%20of%20Women_0.pdf.

[14] See the text of the 2007 Charter on the website of the African Union: http://www.au.int/en/sites/default/files/AFRICAN_CHARTER_ON_DEMOCRACY_ELECTIONS_AND_GOVERNANCE.pdf. As of 19 July 2012, only 17 States have ratified the 2007 Charter. See the status on ratification on the website of the African Union: http://www.au.int/en/sites/default/files/Charter%20on%20Democracy%20and%20Governance_0.pdf.

[15] See the text of the 2009 Convention on the website of the African Union: http://www.au.int/en/sites/default/files/AFRICAN_UNION_CONVENTION_FOR_THE_PROTECTION_AND_ASSISTANCE_OF_INTERNALLY_DISPLACED_PERSONS_IN_AFRICA_(KAMPALA_CONVENTION).pdf. As of 14 August 2012, only 14 States have ratified the Convention. See the status on the ratification on the website of the African Union: http://www.au.int/en/sites/default/files/Convention%20on%20IDPs%20-%20displaced..._0.pdf.

[16] See the website of the African Commission: http://www.achpr.org/.

[17] See African Commission on Human and Peoples’ Rights, Resolution on Recommendation on Periodic Reports, April 1988 available online (http://www.achpr.org/sessions/3rd/resolutions/3R/). See on the website of the African Commission, the presentation on the State Reporting Procedure: http://www.achpr.org/states/reporting-procedure/.

[18] See the text of the Protocol on the website of the African Union: http://www.au.int/en/sites/default/files/PROTOCOL_AFRICAN_CHARTER_HUMAN_PEOPLES_RIGHTS_ESTABLISHMENT_AFRICAN_COURT_HUMAN_PEOPLES_RIGHTS_1.pdf.

[19] See the website of the African Court on Human and Peoples’ Rights (http://www.african-court.org/).

[20] Twenty-six States have already ratified the 1998 Protocol but only five of them have made the declaration (Burkina Faso, Ghana, Malawi, Mali and Tanzania). See the status on ratification as of 13 July 2012: http://www.au.int/en/sites/default/files/achpr.pdf.

[21] See the text of the 2008 Protocol on the website of the African Union: http://www.au.int/en/sites/default/files/PROTOCOL_STATUTE_AFRICAN_COURT_JUSTICE_AND_HUMAN_RIGHTS.pdf. See also: Elias O., Introductory Note to the Protocol on the Statute of the African Court of Justice and Human Rights, 48 International Legal Materials 314 (2009), pp. 334-336, available online at: http://jurisafrica.org/html/pdf_introduction-human-rights.pdf. As of 14 August 2012, only five States have ratified the 2008 Protocol (Bénin, Burkina Faso, Congo Brazzaville, Libya and Mali). See the status on ratification on the website of the African Union: http://www.au.int/en/sites/default/files/Protocol%20on%20Statute%20of%20the%20African%20Court%20of%20Justice%20and%20HR.pdf.

[22] Assembly/AU/Dec. 427 (XIX) Decision on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (http://www.au.int/en/sites/default/files/Assembly%20AU%20Dec%20416-449%20(XIX)%20_E_Final.pdf).

[23] See the website of the Committee: http://www.acerwc.org/.

[24] See the Status of Ratification as of 13 July 2012: http://www.au.int/en/sites/default/files/Welfare%20of%20the%20Child_0.pdf.

[25] See: African Committee of Experts on the Rights and Welfare of the Child (ACERWC), Decision on the Communication submitted by the Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) against the Government of Kenya, 22 March 2011 (http://www.acerwc.org/wp-content/uploads/2011/09/002-09-IHRDA-OSJI-Nubian-children-v-Kenya-Eng.pdf).

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Thanks for your detailed information!!