The African regional human rights system is both universal in character and distinctively African in its scope and principles. Though the auspices of the African Union (AU), Africa has several human rights mechanisms, laws and norms, at the centre of which lies The African Charter on Human and Peoples’ Rights (African Charter). This unique yet undeniably flawed human rights instrument aims to ‘promote and protect human and peoples’ rights and freedoms’ whilst considering the legal and political cultures of African states and preserving African tradition and identity.
The African Charter is celebrating its 40th anniversary this year, and it is sufficient to muse on its successes and challenges. Unlike other human rights treaties, the African Charter uniquely recognises collective rights, individual duties and third-generation rights, showing the interdependence between political, civil, economic, and socio-cultural rights. The Charter entered into force in 1986 after its adoption in 1981. Since then, it has been adopted by all 53 African States and is widely recognised within Africa, at least theoretically, as setting the standard for human rights protection.
Normative Provision of the African Charter
The African Charter includes a preamble, three parts, four chapters, and 63 articles. The Charter followed the footsteps of the European and Inter-American systems by creating a regional human rights system for Africa with first aim of protecting rights to sustain human development in the continent. The preamble commits to eliminating Zionism, which it compares with colonialism and apartheid, caused South Africa to qualify its 1996 accession with the reservation that the Charter fall in line with the UN’s resolutions “regarding the characterisation of Zionism”.
The civil and political rights recognised in the Charter include the right to freedom from discrimination, equality, life and personal integrity, freedom from slavery, freedom from cruel, inhuman or degrading treatment or punishment. Rights to due process concerning arrest and detention, the right to a fair trial, freedom of religion, freedom of information and expression, freedom of association, freedom of movement, freedom to political participation, and property right are also included. Likewise, The Charter recognises certain economic, social and cultural rights, and overall the Charter is considered to place considerable emphasis on these rights. It recognises the right to work, the right to health, and the right to education.
In addition to recognising the individual rights mentioned above, the Charter also recognises collective or group rights, or peoples’ rights and third-generation human rights. The Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards family protection by the state.
However, several internationally recognised civil, political, and socio-economic rights are not included in the African Charter or are not explicitly or fully realised. For instance, the African Charter does not include a right to privacy or the right against forced labour. Although the right to free association is included, the right to form trade unions is not explicitly recognised. While the African Charter has socio-economical rights, it is surprising that it excludes housing, food and social rights.
The most controversial provision of the African Charter is the restriction or “clawback” clauses which require States parties to restrict basic human rights to the maximum extent allowed by domestic law. The Charter severely limit the fundamental civil and political rights by clauses like “except for reasons and conditions previously laid down by law “subject to law and order”, “within law”, “abides by the law”, “in accordance with the provisions of the law” and other restrictions justified for the “protection of national security” For stance Article 9(2) of the Charter provides that “Every individual shall have the right to express and disseminate his opinions within the law.” The word “law” was commonly understood as referring to the domestic law before the CommissionCommission ruled that in fact it should be understood as a reference to international law.
Further, the Charter does not include provisions addressing the limitation and derogation of rights in times of emergency. Normally in emergency situations, rights will be and should be limited. Thus States facing real emergencies could, in practice, be expected to ignore the Charter rather than succumb to the emergency if those are the only two options available. Under such circumstances, the Charter will exercise no restraining influence on States in respect of how the operation of the rights in question is suspended, and the Charter will be discredited.
Enforcement system of the Charter
The enforcement of the African Charter is done by the Commission on Human and Peoples’ Rights (Commission), the body that has exercised continental oversight over African human rights since 1987. The Commission has been the sole supervisory body for the African Charter, until 2004 when the African Court on Human and People’s Rights came into existence.
The Charter charges the Commission with three principal functions: examining State reports, considering alleged violations, and expounding the Charter. Every two years, States must submit a report on the normative measures taken to give effect to the individual and group rights and the obligations of the States. Although the examination of States’ reports has served as a forum of discussion with NGOs and normative understanding of the Charter through interpretation of its provisions, The Commission has been criticised for not adequately advising state parties on how to improve their human rights situation. Further, the decisions of the Commission are not binding and are considered to attract little attention from governments, the human rights community and academic journals.
Another big constraint to the Commission’s effectiveness is the principle of non-interference between States seems still entrenched. To this day, the Commission has heard only one since its establishment. Lack of political will on the African States or governments to hold one another accountable for violations of fundamental freedoms is regarded to be the main reason for few lodged of inter-State complaints.
The African Court
The African Court on Human and Peoples’ Rights (African Court) was established through a Protocol to the African Charter. The Court was established in order to complement the protective mandate of the Commission. Its decisions are final and binding on state parties to the Protocol. The jurisdiction of the Court is not limited to cases or disputes that arise out of the African Charter. The Court can apply any relevant state-ratified human rights instrument, including UN and regional instruments, such as the ECOWAS treaty. Some scholars worry that allowing broad jurisdiction to the Court may cause chaos in the courtroom, meaning that all human rights treaties ratified by a State party to the Protocol in the past will become justifiable.
The normative provisions and enforcement mechanisms are original, but there is a need for reform. The normative flaws discussed above can only be corrected through the reformation of the Charter. There is an urgent need for a clear allocation of responsibility to increase cooperation and efficiency between the institutions implementing the Charter. Through careful management of resources and effective national implementation and publicity, the standing of the Charter can be improved, guaranteeing the promotion and protection of human rights within the continent. Despite the flaws that have arisen since the genesis of the Charter in a continent where most African languages do not have an expression for ‘human rights, the Charter provides a solid foundation on which a human rights culture can be fostered.
Dr Norah Msuya is an academician and writes in her personal capacity.