The African Regional Human Rights System
Owing to its turbulent history, the African continent has faced tremendous challenges in the human rights sphere. The continent frequently makes international news for protracted and catastrophic civil wars, interstate conflicts, ethnic cleansing, coup d’états, corruption of gargantuan proportions, chaotic elections, toxic waste dumping, famine, diseases, child labour and the like. This state of affairs ensures that human right abuses on a massive scale continue across the continent. The current dire situations in Sudan, Somalia, Democratic Republic of Congo and Zimbabwe are glaring examples. The First Organization of African Unity Ministerial Conference on Human Rights in Africa (1999) correctly identified the causes of human rights violations in Africa. These included the following: contemporary forms of slavery, neo-colonialism, racism, religious intolerance, poverty, conflicts, mismanagement and bad governance, corruption, monopoly of power, lack of judicial and press autonomy, environmental degradation, terrorism and nepotism.1 Despite that grim outlook, a potentially viable regional human rights system is emerging in Africa which is progressively making the human rights promises of the UDHR2 a reality to the people of Africa.
2. The African Regional Human Rights System
The African Charter on Human and Peoples’ Rights (ACHPR)3 is at the core of the African human rights system. However, it must be noted that there are other instruments (though some of these are not wholly human rights instruments) created within Africa before and after the African Charter which have bearing on the system. These include the Convention on Specific Aspects of the Refugee Problems in Africa 1969,4 the African Charter on the Rights and Welfare of the Child 1990,5 the Protocol on the Establishment of an African Court on Human and Peoples’ Rights 1998,6 the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa 2003,7 and the Protocol on the Statute of the African Court of Justice and Human Rights 2008.8 To a greater or lesser degree, each of the instruments incorporates the peculiarities of Africa in the protection of human rights.
3. Relationship Between the African Human Rights System and the UDHR
The emergence of ‘an African regional human rights system’ can be traced back to the establishment of the Organization of African Unity (OAU). The OAU was established in 1963 with the aim of fighting colonialism and apartheid in South Africa.9 The OAU did not engage much with human right issues except in the context of self-determination and apartheid in South Africa.10 The lack of emphasis on human rights under the OAU was due to the strong bias in favour of non-interference in other states’ internal affairs. Nonetheless, the preamble of the OAU Charter makes specific reference to the UDHR. It asserts, inter alia, that OAU states are
[p]ersuaded that the Charter of the United Nations and the Universal Declaration of Human Rights, to the Principles of which we reaffirm our adherence, provide a solid foundation for peaceful and positive cooperation among States
The OAU Charter further provides in Article 2 that one purpose of the OAU, among others, was to:
promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.
It was therefore not the case that African leaders were completely uninterested in human rights issues. To the contrary, after the summit in 1963 at which the OAU Charter was signed, African leaders started considering the possibility of adopting a Convention on Human Rights in line with the UN Charter and the UDHR. Despite the fact that at the time of the making of the UDHR, only two African states (Ethiopia and Liberia) were members of the UN, with the rest under colonial or apartheid rule, the UDHR was the main inspiration underlying the creation of the African human rights system. The process culminated in the introduction of the African Charter on Human and Peoples’ Rights in 1981. The African Charter is the continent’s principal human rights instrument. It has its independent commission in Banjul, Gambia. As will be explained later in this chapter, the African Charter has unusual features that set it apart from other regional and international human rights instruments. These include the coverage of economic, social and cultural rights alongside civil and political rights, inclusion of third-generation rights, inclusion of people’s rights, and specific duties of individuals and states.
In 2001, the African Union (AU) was established as a successor to the OAU. The purposes that the AU is designed to serve include the securing of the continent’s democracy, human rights and sustainable economy. The Constitutive Act of the AU incorporated all of the objectives and principles of the OAU in its provisions. However, it went further than the OAU Charter by providing for the promotion of democratic principles and institutions, popular participation and good governance, and, most importantly in the context of this chapter, the promotion and protection of human rights.11 The AU thus seems to take a more rigorous and robust approach to human rights promotion and protection. The principles of the Constitutive Act also expressly include respect for democratic principles, human rights, the rule of law, and the promotion of social justice to ensure balanced economic development.12
To improve the efficacy of its human rights system, the AU departed from the earlier emphasis placed on non-interference with the internal affairs of member states under the OAU by making provision for the imposition of sanctions on member states that fail to comply with the decisions and policies of the AU.13 The AU Constitutive Act provides for the following institutions: an Assembly and Executive Council, a Pan-African Parliament, an African Court of Justice, a Permanent Representatives Committee, an Economic, Social and Cultural Council, a Peace and Security Council, and specialized technical committees and financial institutions. Many of these institutions have the potential to deal with human rights issues.14
3.1 The African Charter and UDHR
A comparison of the African Charter with the UDHR reveals great similarities. Articles 2 and 19 embody the right to non-discrimination in similar terms to Article 2 of the UDHR. The right of equality before the law guaranteed under Article 3 of the African Charter can also be inferred from Article 2 of the UDHR. Article 4 of the African Charter guarantees the right to life in similar terms to Article 3 of the UDHR. Article 20(1) of the African Charter provides further elaboration on the right to life. Article 5 of the Charter guarantees the right to the respect of the dignity inherent in a human person and the right to the recognition of his legal status. The article goes on to prohibit all forms of exploitation and degradation with particular reference to slavery, the slave trade, torture, and cruel, inhuman or degrading treatment. These guarantees are covered by Articles 3, 4 and 5 of the UDHR. The right to liberty is guaranteed in Article 6 of the African Charter and is more elaborate on the subject than Article 3 of the UDHR, which, among other things, also guarantees the right to liberty. Article 7 of the African Charter protects the right to a fair trial, combining various provisions of Articles 7, 8 and 11 of the UDHR. Article 8 of the Charter protects ‘freedom of conscience, the protection and free practice of religion’ in similar terms to Article 18 of the UDHR. However, the UDHR elaborates more on the right to freedom of religion. Other provisions of the African Charter that are similar to those of the UDHR are as follows: Article 9 of the African Charter and Article 19 of the UDHR on freedom to information; Articles 10 and 11 of the African Charter and Article 20 of the UDHR on the right to association and assembly; Article 12 of the African Charter and Articles 13 and 14 of the UDHR on the right to movement and to seek asylum; Article 13 of the African Charter and Article 21 of the UDHR on the right to participate in government and to access public service; Article 14 of the African Charter and Article 17 of the UDHR on the right to property; Article 15 of the African Charter and Article 23 of the UDHR on the right to work and employment; Article 16 of the African Charter and Article 25 of the UDHR on the right to health; Article 17 of the African Charter and Article 26 of the UDHR on the right to education; Article 18 of the African Charter and Articles 16 and 25 of the UDHR on the rights of the family, women and child; Article 19 of the African Charter and Article 1 of the UDHR on equality of all human beings; Article 22 of the African Charter and Article 22 of the UDHR on the right to development; Article 23 of the African Charter and Article 28 on the right to national and international peace and security; Articles 25 and 29 of the African Charter and Article 29 of the UDHR on the duties of the individual and the state.
Notwithstanding the many similarities between the African Charter and the UDHR, some commentators have contended that the African Charter’s provisions are inadequate with respect to freedom from slavery, freedom from compulsory or forced labour, the prohibition of the death penalty, marital rights, and the right to privacy.15
3.2 The African Charter’s Unique Features
The African Charter combines elements of international law with African concepts of rights. The drafters of the charter were guided by the principle that the Charter ‘should reflect the African conception of human rights and should take as a pattern the African philosophy of law and meet the needs of Africa’.16 There was a conscious effort to rationalize African perspectives on the relationship between the individual and society with international human rights standards. According to Udombana, the African Charter is ‘more than just a matter of public international law or international customary law; it is a synthesis of universal and African elements. Its organizing principle is the balance between tradition and modernity, not only between African tradition and the modernity of international law, but also between African modernity and the tradition of international law.’17 Perhaps this combination of elements explains the unique features of the African Charter.
The charter recognizes not only civil and political rights but also economic, social and cultural rights. It provides for the unconditional realization of these rights. According to Heynes and Killander, this approach emphasizes the indivisibility of human rights and the importance of developmental issues within the African context.18 The socio-economic rights that are expressly mentioned in the charter include the right to work under equitable and satisfactory conditions (Art. 15), the right to health (Art. 16), and the right to education (Art. 17).
The African Commission has interpreted the provisions of the charter to include unenumerated rights. The commission in SERAC v Nigeria19 held that there are rights which are not explicitly mentioned in the charter but which should be regarded as being implicitly included. Such rights identified in the SERAC case include:
The right to housing or shelter deduced from the provisions on health, property and family in the Charter.20
The right to food deduced from the right to life, right to dignity, right to health and right to economic, social and cultural development.21
The commission went on to hold that all rights under the African Charter are enforceable. It would thus not matter whether the rights are civil and political rights or economic, social and cultural rights. Any right specified under the charter would be enforceable through the communication procedure of the commission. Shelton observed in this regard:
The Commission’s decision that all rights in the African Charter are enforceable and may be subject to the system’s communication procedure advances the African system well ahead of other regional systems – which have moved tentatively toward allowing petitions for economic, social and cultural rights, and which only partially recognize a right to environment.22
Another distinctive feature of the African Charter is its recognition of ‘people’s rights’. Though the concept is not defined under the charter, it is generally understood to mean collective or group rights. The rights include equality of people (Article 19), the right of people to existence and self-determination (Article 20), the right of people to freely dispose of their wealth and national resources (Article 21), the right to development (Article 22), the right to national and international peace and security (Article 32), and the right to ‘a generally satisfactory environment’ favourable to development (Article 24).
Furthermore, the charter imposes correlative duties on individuals contained in many human rights instruments and goes further to impose autonomous duties not connected with rights.23 Perhaps more unique is the imposition of wider and specific duties upon states. These duties are contained in Articles 20, 21, 22, 25 and 26 of the African Charter. States’ duties include duties to assist in liberation struggles, to eliminate foreign economic exploitation, to ensure the exercise of the right to development, to promote the rights and freedoms contained in the charter, to guarantee the independence of courts, and to establish and improve national institutions entrusted with the promotion and protection of human rights.
A notable difference between the charter and the UDHR is the employment of clawback clauses in many of the substantive provisions of the African Charter (Articles 6–14), in contrast with the UDHR, which includes a derogation clause. The UDHR employs a general derogation clause in Article 29(2), which permits derogation from the rights protected when necessary for the purposes of securing the rights of others, or meeting the just requirements of morality, public order and the general welfare. On the face of it, it would appear that the non-inclusion of a derogation clause in the African Charter provides a more secure framework for rights protection by not allowing for derogation from the rights protected. The reality, however, is that many of the clawback clauses subordinate the provisions of the charter to municipal laws and to the discretion of states in that they qualify the observance of the principles in the charter under certain circumstances.24 The use of these clauses has been widely criticized by human rights scholars.25
On a positive note, the commission in its jurisprudence has contained the effects of the use of clawback clauses by interpreting the provisions in harmony with international human rights standards.26
3.3 Expansion of the Rights Protected Under the African Human Rights System
Over the years, there has been a progressive expansion of the rights protected under the African system. This expansion has accentuated the similarities between the rights protected under the African system and the UDHR. An example is the protection of the rights of children. Children are generally entitled to the rights guaranteed under the UDHR. However, the UDHR makes direct references to children only in Articles 25 and 26. Later instruments made pursuant to the UDHR, especially the UN Convention on the Rights of the Child 1989,27 broadened the rights of the child under the UN framework. Similarly, under the African Charter, with the exception of Article 18(3), there is no special or specific provision for the rights of children. Article 18(3) does not, however, confer any specific right on children but only provides for ‘the protection of the rights of … the child as stipulated in international declarations and conventions’. The African Charter on the Rights and Welfare of the Child (ACRWC) was introduced to fill this gap in the African system. Its provisions are very similar to the UN Convention on the Rights of the Child, and in some instances the ACRWC provides a higher level of protection.
Similarly, the African Convention on the Ban on the Import into Africa and the Control of Transboundary Movement of Hazardous Waste in Africa (the Bamako Convention) 199128 complements the provisions of the African Charter on the right to a general satisfactory environment (Article 24), right to life (Article 4), right to security of a person (Article 6), and right to health (Article 16). The dumping of toxic wastes impinges on the aforementioned rights. The convention was adopted to strengthen the framework for the control of the movement of hazardous wastes within Africa.
African states also adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) 200329 to expand the rights of women under the African Charter. Many of the rights guaranteed under the Protocol can also be found in the African Charter, but the Maputo Protocol is more comprehensive and specific to issues relating to women.30 The rights include respect for dignity (Article 3), freedom from discrimination (Article 2), right to physical and emotional security (Article 4), right to participate in the political process (Article 9), right to peace (Article 10), economic and social welfare rights (Article 13), health and reproductive rights (Article 14), environmental rights (Article 18), and the right to sustainable development (Article 19). However, the protocol introduces some new rights that were not contained in the African Charter. These include governments’ duty to integrate a women perspective in policy development (Article 2); the right of vulnerable groups of women, including elderly women, widows, disabled women and women in distress (Articles 20, 21, 22 and 24); rights to food security and housing (Articles 15 and 16); the right to live in a positive cultural environment (Article 17); prohibition of female genital mutilation (Article 5); and the reproductive rights of women (Article 14).
4. The Control Mechanisms Under the African Human Rights System
Unlike the UDHR, which does not provide for a mechanism for enforcing its provisions, enforcement mechanisms are included in the principal human rights instrument in Africa.
4.1 The African Charter’s Mechanism
The two main mechanisms provided for under the African Charter are the African Commission’s procedure and the reporting procedure. Originally, the African Commission was established under the African Charter for the purposes of ensuring compliance with the provisions of the charter.31 The commission was modelled on the European Human Rights Commission (since abolished)32 and the Inter-American Commission on Human Rights.33 As stated in Article 45 of the charter, the commission’s functions include the promotion of human rights, the protection of human rights under the African Charter, the interpretation of the African Charter, and any other functions assigned to the commission by the Assembly of Heads of State. The commission also has the additional task of preparing cases for submission to the African Court on Human and Peoples’ Rights.34 The commission thus has both protective and promotional responsibility. Its protective responsibility involves receiving communications on violations of rights protected under the charter, communicating them to states and investigating them with the view to reconciling the parties. The decisions are also included in the commission’s activity report. Although the African Charter directly refers only to communications from states, the commission also accepts communications from non-state actors under the provision for ‘Other Communications’.35 This makes it possible for individuals and non-governmental organizations (NGOs) to bring complaints before the commission. However, a communication can only be brought against a state party to the charter and not against private persons or individuals.36 Hence, a private person or individual can only be implicated when a state is held liable for the violation of human rights. Significantly, specific provision was made for legal aid for the first time under the recently adopted Interim Rules of Procedure of the African Commission on Human and Peoples’ Rights (Interim Rules).37 Rule 107 provides that the commission may by itself or at the request of the author of a communication facilitate legal aid to the author in connection with the case. Such legal aid will be facilitated where the commission is convinced that the facilitation is essential for the proper discharge of its duties and the author has no sufficient means to meet all or part of the costs of proceedings. The commission does not by itself enforce its decisions but occasionally grants interim or provisional measures to avoid irredeemable harm.38 In International PEN and Others v Nigeria, the commission held that such provisional measures are binding.39 The commission has produced world- leading decisions in the area of economic, social and cultural rights, thereby refuting the widely canvassed argument that such rights cannot be dealt with through a judicial process.40 The commission is also setting the pace in translating collective rights (such as the right to development, the right of people to dispose of their wealth and natural resources freely, the right to peace and security, the right to self-determination, and cultural rights) into enforceable rights.41
Despite its potential as an institution to protect and promote human rights, the commission has its limitations. State parties generally refuse to cooperate with the commission during investigations, hearings of cases and implementations of decisions. In relation to the implementation of its decisions, it has been suggested that the commission, in most of its decisions, has failed to enunciate clear and specific remedies that may effect compliance.42