AFRICAN HUMAN RIGHTS SYSTEM

BY
PROFESSOR [Link]
INSTRUMENTS

 OAU Convention Governing the Specific Aspects of

Refugee Problems in Africa 1969.
 African Charter of Popular Participation in
Development and Transformation 1990.
 African Charter on the Rights and Welfare of the
Child 1990.
 African Convention on the Conservation of Nature
and Natural Resources 1968.
 Bamako Convention on the Ban of the Import into
Africa and the Control of Transboundary Movement
and Management of Hazardous Wastes within Africa
1991.
 The African Charter on Human and People’s Rights
1981.
 Draft Protocol on the Rights of Women in Africa.
 Draft Protocol on the Establishment of an African
Court on Human and Peoples Rights.

THE AFRICAN CHARTER ON HUMAN AND PEOPLES

RIGHTS

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  Operates within the framework of the Organisation of
African Unity (OAU).
 Adopted by the OAU Heads of State and Government
on 27th June 1981.
 Entered into force on 21st October 1986.
 All 53 African States are members

BACKGROUND
 African Charter: marks a departure from previous
OAU practice, which had stressed the principle of
non-interference in the internal affairs of member
states enshrined in Article 3 of the OAU Charter.
 In the past that principle had been used to prevent
the OAU from dealing with gross abuses of human
rights by African States. E.g. Uganda under Idi Amin
and Obote; Equatorial Guinea under Macias Nguema;
Central African Republic under Emperor Jean Bedel
Bokassa, Ethiopia under Colonel Mengistu Haile
Mariam; Malawi under Hastings Kamuzu Banda, Zaire
under Mobutu Seseseko, etc.

DISTINCTIVE FEATURES OF THE AFRICAN

CHARTER

A. Reflects African traditions and the influence of UN

human rights instruments.

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B. Guarantees both civil and political rights on one
hand, and economic, social and cultural rights, on the
other hand.

Civil and Political Rights (Articles 3 – 14)

 equality before the law as well as equal protection of
the law
 respect for the life and integrity of the individual

 respect for human dignity and freedom from

exploitation, torture, cruel, inhuman or degrading

punishment, and slavery

 liberty and security of person

 fair trial

 freedom of conscience and religion

 freedom of expression and the right to receive

information

 freedom of association and assembly

 freedom of movement and residence

 right to asylum in other countries (mass expulsions

of non-nationals prohibited)

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  right to participate freely in the government,

including having equal access to the public service,

equal access to public property and services

 right to property

 The African Charter does not define “People”

o Katangese Peoples Congress v. Zaire

Economic, Social And Cultural Rights (Art. 15-18)

 Right to work under equitable and

satisfactory conditions including equal pay for

equal work

 To enjoy the best attainable state of physical

and mental health

 Education and participation in cultural life of

the community

 Protection of the family. The State “shall

ensure the elimination of every discrimination

against women and also ensure the

protection of the rights of the woman and the

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 child as stipulated in international

declarations and conventions”

 Protection of the aged and disabled

C. Guarantees of Peoples Rights (Articles 19-24)

 Equality and existence

 Self-determination

 Freely to dispose of their wealth and natural

resources

 Right to development

 Right to national and international peace and

security, as well as solidarity

 Right to a general satisfactory environment

D. Clawback Clauses

 The Charter is drafted in a form that permits the

government to impose very extensive restrictions

and limitations on the exercise of the rights it

proclaims.

 Enjoyment of several rights is made subject to

national law

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 o Freedom of conscience, the profession and

religion: “subject to law and order” (Art. 8);

o Freedom of expression: “within the law” (Art. 9(2))

o Freedom of association: “provided he abides by

the law” (art. 10(1))

o Freedom of assembly: “subject to necessary

restrictions provided for by law” (Art. 11).

 Freedom of movement and residence: “provided he

abides by the law” (Art. 12).

 By virtue of these very ambiguous and limitlessly

broad standards, clawback clauses do not provide

the external control over state behaviour that

derogation clauses in other Conventions provide.

 In other conventions derogations must meet certain

standards

 Prescribed by law

 Necessary for specified interest (e.g. rights of

others, national security, public morality, etc)

 reasonably justifiable in a democratic society

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  The African Charter fails to prescribe the standards

the law imposing the restrictions must meet, allowing

states to violate the guaranteed rights provided they

do so under colour of law

E. Immediate and Absolute obligations

 In terms of the nature state obligations there

is no distinction made among the various

generations of rights

F. Duties (articles 27 – 29)

 The Charter prescribes duties of the individual

toward the family, the community, the state and

the international community.

 Individual rights must be exercised with due

regard to the rights of others, collective security,

morality and common interest.

The Duties:-

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 to respect and consider his fellow beings without

discrimination, and to maintain relations aimed at

promoting, safeguarding and reinforcing mutual

respect and tolerance

 not to compromise the security of the state

 to preserve and enhance social and national

solidarity

 to preserve and strengthen national independence

and the territorial integrity of the country and to

contribute to its defence

 to promote African unity

 to pay taxes

 to preserve and strengthen positive African

cultural values

 to preserve the harmonious development of the

family and to work for the cohesion and respect of

the family

 to respect his parents and maintain them in case

of need

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  to serve his national community by placing his

physical and intellectual abilities at its service.

Type of Duties

 duties which can be characterized as correlative to

rights, such as the obvious duties of States that

are correlative (corresponding) to individual rights,

e.g. not to torture

 restrictions on the enjoyment of rights disguised

as duties

African Charter and Duties

 The Charter goes beyond the conventional notion

that duties are correlative (corresponding) to

individual rights, e.g. not to torture

 It goes beyond declaring similar correlative duties

of individuals. E.g. the duty not to invade another

individual’s right to personal security

 The Charter differs in defining duties that are not

simply the “other side” of individual rights, and

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 that run from individuals to the State as well as to

different types of groups of communities within (or

perhaps transcending) that State.

 Depending on their interpretation and application,

duties and ideals of solidarity may impinge in clear

and serious ways on the Charter’s definition of

rights themselves.

 The duties are of such a breadth and so

ambiguous in their connotations that a regime of

serious enforcement without some degree of prior

elaboration is difficult to imagine

 There is a danger that a government can use the

duties as an excuse to impose severe limitations

on the enjoyment of individual rights.

STATE OBLIGATIONS AND MEASURES OF

IMPLEMENTATION

 To recognize the rights, duties and freedoms

enshrined in the Charter and undertake to adopt

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 legislative or other measures to give effect to

them (Art. 1).

 To promote and ensure through teaching,

education and publication, the respect of rights

and freedoms (Art. 25)

 To guarantee the independence of the courts (Art.

26)

 To allow the establishment and improvement of

appropriate national institutions entrusted with the

promotion and protection of human rights (Art.

26).

THE AFRICAN COMMISSION ON HUMAN AND

PEOPLES’ RIGHTS (Art. 30, 31, 32, 33)

 Comprises 11 members elected by OAU Heads of

State and Government from amongst African

personalities of the highest reputation, known for

their high morality, integrity, impartiality and

competence in matters of human and peoples’

rights.

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  Members serve in their personal capacity

 Tenure: six years but eligible for re-election

MANDATE OF THE COMMISSION (Art. 45)

 Promotion of human rights

 Protection of Human Rights

 Interpretation

 Any other tasks which may be entrusted to it by

the OAU Assembly of Heads of State and

Government

PROMOTIONAL FUNCTIONS (Art. 45)

 Collecting documents

 Undertaking studies

 Conferences, seminars, symposia

 Disseminating information

 Foundation principles and rules aimed at solving

legal problems relating to human and peoples

rights upon which African Governments may base

their legislation

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  Co-operation with other African and International

institutions

PROTECTION FUNCTIONS (Art. 46 – 54)

(a) Inter-state communications

(b) Other communications

INTER-STATE COMMUNICATIONS

(1) Negotiation-Communication

 A State party communicates directly with a

State party accused of violating human

rights.

 Bilateral negotiations ensue

 If there is no negotiated settlement either

State may submit the matter to the

Commission within three months

(2) Complaint Communication

 Where one State complains to the Commission

against another State the Commission must be

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 satisfied that all local remedies, if they exist, have

been exhausted

 Commission may conduct an oral hearing (both

States may be represented)

 Commission must first try to promote an amicable

solution

 If no friendly settlement is possible the

Commission prepares “a report stating the facts

and its findings”

 Copies of the Report are sent to the States

concerned and the OAU Assembly of H of S and

Gv’t to which the Commission may make “such

recommendations as it deems useful

 Report and all other measures must remain

confidential unless otherwise decided by the

Assembly

OTHER COMMUNICATIONS (ART. 55 – 59)

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 Individuals, NGOs or other groups may submit

communications to the Commission against States

parties

 Criteria for admissibility (Art. 55)

 If a communication relates solely to individual

violations of human rights, the Commission has no

power to take any action

 If the Commission finds that one or more

communications clearly reveal the “existence of a

series of serious or massive violations of human

and peoples rights” the Commission draws the

“special cases” to the attention of the Assembly

 The Commission may “undertake an in-depth

study of these cases and make a factual report,

accompanied by its findings and

recommendations” only upon the request of the

Assembly

 Emergency situation: The OAU chairman may

authorize the Commission to investigate

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  Confidentiality: All matters pertaining to the

communication are confidential

REVIEW OF PERIODIC REPORTS (ART.62)

 States are required to submit, every two years, a

report “on the legislative or other measures taken

with a view to giving effect to the rights

recognized and guaranteed” by the Charter

 Detailed guidelines drawn up by the Commission

 Problems

o Late submission of reports

o Brief reports

o Non-submission of reports

o Inadequate time for review of reports

INTERPRETATIVE AND OTHER FUNCTIONS (ART. 45)

 The Commission may interpret the provisions of

the Charter at the request of State parties, OAU

Institutions or any other African Organisation

recognized by the OAU

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 The Commission can draw inspiration from-

o The UN and OAU Charters

o The Universal Declaration on Human Rights

1948

o African Human Rights Instruments

o Other instruments adopted by the UN

and by African countries in the field of

human and peoples’ rights as well as

from various instruments adopted

within the specialized Agencies of the

UN of which the parties to the present

Charter are members” (Art. 60)

 The Commission may “take into consideration,

as subsidiary measures to determine the

principles of law,” various other human rights

agreements to which OAU member States are

parties, together with “African practices

consistent with international norms on

human and peoples rights, customs

generally accepted as law, general principles

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 of law recognized by African states as well

as legal precedents” (Art. 61)

 Thus, in interpreting and applying the African

Charter, the Commission has a broad mandate to

draw on a vast body of law which articles 60 and

61 incorporate by reference into the African

Charter.

 The Commission is granted an invaluable tool

capable of ensuring that the interpretation of the

Charter will keep up with the growth of general

international law of human and peoples rights.

PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND

PEOPLES’ RIGHTS ON THE ESTABLISHMENT OF AN
AFRICAN COURT OF HUMAN AND PEOPLES’ RIGHTS

 Adopted by OAU Assembly of Heads of State and

Government

 Purpose: to establish an African Court of Human

Rights empowered to issue binding decisions

 Not yet in force: Needs 15 ratifications

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RELATIONSHIP WITH THE AFRICAN COMMISSION (ART.

2)

 To complement the protective mandate of the

African Commission

Jurisdiction

Contentious (Art. 3)

 To adjudicate all cases and disputes submitted to

it concerning-

o The interpretation and application of the

African Charter

o The Protocol establishing the Court

o Any other relevant Human Rights Instrument

ratified by the States concerned

Advisory Opinions (Art. 4)

 To provide advisory opinions on any legal matter

relating to the Charter or other applicable African

Human rights Instrument at the request of-

o The OAU

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 o OAU Organs

o Any African organization recognized by the

OAU

WHO IS ENTITLED TO SUBMIT CASES? (ART. 5)

Art. 5(1):

 The Commission

 The State Party which has lodged a complainant to

the Commission

 The State Party against whom the complaint has

been lodged at the Commission

 The State party whose citizen is a victim of human

rights violation

 African inter-governmental Organisations

Art. 5(2):

 A State party which has an interest in a case may

apply to be permitted to join

Art. 5(3):

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  The court may entitle NGOs with observer status

before the Commission and individuals to institute

cases directly before it provided the State party

has made a declaration accepting the

competence of the Court to receive petitions

from individuals and NGOs under art. 34(6).

Sources of Law (Art. 7)

 ACHPR

 Any other relevant human rights instruments

ratified by the States concerned

ADMISSIBILITY OF CASES (ART. 6)

 The Court may request the opinion of the

Commission

 The Court should take into account admissibility

requirements laid down in art. 56 of the Charter

 The Court may consider cases or transfer them to

the Commission

 The matter must be submitted to it within three

months of the Commission’s decision

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COMPOSITION (ART. 17)

 11 Judges, nationals of OAU Member States,

elected by the Assembly of Heads of State of the

OAU by secret ballot, upon nomination by the

States Parties.

 There must be adequate gender representation

and all the main regions of Africa and their

principal legal traditions must be represented

 Must be jurists of “high moral character and of

recognized practical, judicial or academic

competence and experience in the field of human

and peoples’ rights”

 Independence of judges: guaranteed

 Term of Office: 6 years subject to re-election

(once)

 Quorum: 7 judges

 All judges except the President: part-time

POWERS OF THE COURT (ART. 27)

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  Issues provisional measures in cases of extreme

gravity and urgency

 Can make appropriate orders to remedy violation

of human rights, including the payment of fair

compensation or reparation

JUDGEMENTS AND EXECUTION (ART. 27 – 29)

 Final, not subject to appeal

 May review its decision in the light of new

evidence

 Dissenting and concurring opinions permitted

 Must be rendered within 90 days of having

completed its deliberations

 To be read in open court, and with reasons

 Parties must be notified of the judgment and it

shall be transmitted to the parties, OAU Members,

the Commission and the Council of Ministers

 States parties “undertake to comply with the

judgment in any case to which they are parties

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 within the time stipulated by the Court and to

guarantee its execution”.

 Council of Ministers: monitors its execution on

behalf of the Assembly.

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