The African Charter on Human and Peoples Rights: Thirty (30) Years On, Need for Amendment?

The African Charter on Human and Peoples’ Rights: Thirty (30) years on, need for amendment?

By

Ben Kioko

AU Commission Legal Counsel

October 2011

The African Charter on Human and Peoples’ Rights (hereinafter referred to as “the African Charter”) came about after decades of deliberation amongst jurists and scholars on the African continent. Several Conferences were held in the 1960’s and 1970’s to discuss the possibility of coming up with a regional human rights instrument that seeks to promote and protect human rights in Africa.

The need to draw up a human rights instrument tailored to incorporate African values, while adhering to international standards, became more pressing as the 1970’s was coming to a close. Before the adoption of the African Charter, it could be argued that the protection and promotion of human rights in the Continent took a back seat, as more attention was given to consolidating States' sovereignty and the fight against all vestiges of colonialism in Africa. The provisions of the OAU Charter made little express mention of human rights as they reflected the dominating concerns of that time to ensure the independence of African peoples who were still colonized, condemnation of apartheid regimes in southern Africa, and protecting the newly acquired statehood.[1]

The African Charter was adopted by the 18th Ordinary Session of the Assembly of Heads of State and Government of the Organization of African Unity (OAU) held in Nairobi, Kenya on 27 June 1981. The Charter entered into force on 21 October 1986, and the treaty organ established thereunder, the African Commission on Human and Peoples’ Rights[2] (hereinafter referred to as “the Commission”), is based in Banjul, The Gambia.

In addition to providing a wide array of civil and political as well as economic, social and cultural rights (individual and collective) and duties, the African Charter provides for a promotion and protection mechanism through the African Commission. Furthermore, it allows the submission of complaints to the Commission regarding violations of human rights.[3]

The African Charter has various features, which contribute to its uniqueness. It enunciated collective/peoples’ rights, such as the right to self-determination,[4] right to freely dispose of wealth and natural resources, right to peoples’ economic, social and cultural development and the right to a general satisfactory environment.[5]

Furthermore, unlike many other international human rights instruments the African Charter has provisions which place duties on individuals[6], such as the duty of the individual towards his/her family, society, State and other legally recognized communities and the international community[7] as well as the duty to not discriminate, to promote, safeguard and reinforce mutual respect and tolerance.[8]

The African Charter also provides for various civil and political rights, such as the right to equality, the right to life and integrity, the right to dignity and the right to liberty and security, among others.[9]

The African Charter contains provisions dealing with economic, social and cultural rights[10], which according to Nmhielle[11] has led to the African Charter being extolled as a unique conceptualization of human rights, making its mark as the first international instrument enshrining economic, social and cultural rights, as well as other categories of rights ordinarily not considered with much seriousness in the regime of rights.

The African Charter is distinctive from most other international human rights instruments in that it contains comprehensive provisions that deal with civil and political rights as well as social, economic and cultural rights, in addition to what are referred to as “third generation rights” such as the right to development and the right to a satisfactory environment.[12] The African Charter has an impressive approach of incorporating various types of rights into its body as compared to other regional human rights instruments.[13]

Paragraph 7 of the Preamble to the African Charter, underlines that “it is essential to pay particular attention to the right to development, and civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.”[14]

While the adoption of the African Charter was a giant leap towards the promotion and protection of human and peoples’ rights in Africa, it has certain claw back clauses which may limit the enforcement of some of the rights provided in the Charter. Some of these claw back clauses include phrases such as, “except for reasons and conditions previously laid down by law”[15], “subject to law and order”[16], “within the law”[17] and “in accordance with the provisions of the law.”[18] These limitations are not clearly defined, which may allow States Parties to the Charter to make justifications. “Despite these concerns there are no instances where States have been permitted to limit rights on the basis of national law.”[19]

In the view of this author, the African Charter is less obsolete[20] as compared to the European Convention on Human Rights[21], American Convention on Human Rights[22] as well as the Universal Declaration on Human Rights[23], not to mention the ICESCR and the ICCPR.[24]

Furthermore, it must be noted that the African Charter took inspiration from all the other major international human rights instruments, which were adopted many years before it.

In addition, Article 60 of the African Charter provides that the African Commission “shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on human and peoples’ rights,[25] UN Charter, OAU Charter, UDHR, and other instruments adopted by the UN and by African Countries in the field on human and peoples’ rights....”.

This provision allows the Commission, which is responsible for the interpretation of the provisions of the African Charter,[26] to avoid making narrow interpretations[27], which in turn can help overcome the hurdles that may be presented by the ‘claw back clauses’. Furthermore, as stated earlier, to date, the Commission has not allowed States to make limitations on peoples’ rights using ‘claw back clauses’ as justification.

In Social and Economic Rights Action Centre (SERAC) and Another V Nigeria[28], which is probably the best known case the Commission has dealt with in its twenty-five (25) years of existence, the Commission passed a landmark decision by declaring that the African Charter recognizes implied rights that are not explicitly provided for within it, such as the right to shelter, which could be taken as one instance in which the Commission has innovatively and boldly interpreted the Charter.[29] Furthermore, the Commission recognized the right to food, which is not explicitly mentioned in the African Charter.[30]

The decision in that case also deals with the obligation of the State to ensure the realization of rights (also by third parties) and places socio-economic rights on the same level as civil and political rights.[31]

From the above-mentioned SERAC case, it can be concluded that in practice the African Commission has resorted to a wide scope of interpretation in analyzing the provisions of the African Charter.

The various OAU/AU treaties adopted, such as the ones listed under Footnote 25 have been able to extend coverage to some new areas of rights which are not included in the African Charter, hence it will not be necessary to amend the Charter to include these other areas of rights.[32]

In the case, African Institute for Human Rights and Development (on behalf of Sierra Leonean Refugees in Guinea) V Guinea [33]the African Commission for the first time found violations of not only the African Charter, but also of the OAU Convention Governing Specific Aspects of Refugees in Africa.[34]

The Commission evidently takes violations of socio-economic rights very seriously. In Purohitand another V The Gambia[35] and Free Legal Assistance Group and Others V Zaire[36]the Commission passed directed at the protection of the right to health, as provided under Article 16 of the African Charter.

Although the African Commission has adopted many landmark decisions, they were not binding, under the OAU framework. For instance in, International Pen and Others (on behalf of Saro-wiwa) V Nigeria[37], the Commission adopted provisional measures, urging that Saro-wiwa and others should not be executed, pending the hearing of the case by the Commission. Yet, the Nigerian Government disregarded the Commission’s request and executed Saro-wiwa and his co-defendants. This case shows how lightly the orders and judgments of the Commission are sometimes taken. The non-implementation of the judgments of the African Commission has been regarded by many as a major shortcoming of the African Commission. The Commission’s lack of enforcement power is one of the reasons that necessitated the establishment of an African Court on Human and Peoples’ Rights, in order to complement the protective mandate of the Commission. With the African Commission operating under the framework of the AU, it is possible to resort to Article 23 (2) of the Constitutive Act, which provides that any Member State that fails to comply with the decisions and policies of the Union may be placed under sanctions. The basis for this would be that respect for human rights is not only a fundamental principle and objective of the Union, but also that the decisions, declarations and judgments of the African Commission have been endorsed by the policy organs of the Union. In any event, a decision of an organ of the Union is and remains a Union decision. Unfortunately, the procedures for application of Article 23 of the Constitutive Act have not yet been determined and published.

The general rule regarding the amendment of treaties as stated under Article 39 of the Vienna Convention on the Law of Treaties[38] is that a treaty may be amended by agreement between the Parties. Furthermore, as per Article 40 (2) (a) & (b) of the Vienna Convention a proposal to amend a multilateral treaty must involve all the contracting parties in the decision as to the action to be taken in regard to such proposal and in the negotiation and conclusion of any agreement for the amendment of the treaty.In the instant case of the African Charter, any amendment would entail negotiation of a Protocol amending the Charter, which would then be subjected to the process of signature, ratification and accession.

The idea of amending the African Charter would be less relevant if States Parties to the Charter were to comply with the decisions of the African Commission as the problem with the protection of human rights are violations by Member States, not the inadequacy of the African human rights instruments. Hence, attention should be paid to the mechanisms available for the promotion and protection of human rights and how to strengthen them, as opposed to amendments to the African Charter.

Amending the African Charter, which is a fundamental human rights instrument, is not the best way forward for ensuring respect for human and peoples’ rights, as the African Charter is not what has held Africa back in actualising full respect, fulfillment, promotion and protection of human and peoples’ rights. On the contrary, the African Charter has various features, which contribute to its effectiveness.

In addition, with the establishment of the African Court on Human and Peoples’ Rights (hereinafter referred to as the Court), the problems regarding the protection of human rights was partly addressed, as the Court has the power to pass final and binding decisions. The primary aim of the Court is to complement and reinforce the protective mandate of the African Commission, and to work in cooperation with the Commission.

To enhance the promotion and protection of human and peoples’ rights, it is essential to strengthen the mechanisms that are in place for that purpose, hence, the reinforcement of the African Court[39] and the African Commission and the linkages between them.

It would be safe to conclude that the African Charter on Human and Peoples’ Rights is a unique treaty, unlike any other regional human rights instruments, which takes account of African cultures and values while upholding international human rights standards. Thus far, there are not sufficient grounds, other than the claw back clauses, that can be presented to necessitate revision of the African Charter.

Indeed, it is the firm opinion of the writer that any effort expended towards amendment of the Charter rather than towards ensuring its full compliance could be counterproductive. Any such process should only be undertaken when there is a clear and present need and the intended result has a good chance of success. It is instructive to note that only a few years ago, within the context of the Audit of the African Union, the Panel of eminent Personalities had recommended that the term of the human rights commissioners be reduced to one term of six years only. In the course of consideration of this proposal, one Member State proposed supported by another three states, and the policy organs of the AU agreedinter alia,, against the advice of the AU Legal Counsel, that the Charter should be amended to provide that the term of office of members of the African Commission members should reduced from six to three years renewable once.[40] This proposal has not been implemented and by itself is not sufficient to warrant the elaboration of a Protocol to the Charter, which would then be subjected to the processes of signature, ratification and accession.

1

[1] Rachel Murray, ‘Human Rights in Africa: from the OAU to the African Union’ (ed. 2004), Cambridge University Press, p. 7

[2] Article 30 of the African Charter established the African Commission, a quasi-judicial body which aims to promote human and peoples’ rights and ensure their protection in Africa.

[3] Individuals as well as non-governmental organizations can bring complaints/communications to the African Commission, where they feel human rights violations have occurred. See Article 55 of the African Charter

[4] Article 20 of the African Charter which provides for the right to an “unquestionable and inalienable right to self-determination“ is one of the most controversial provisions in the Charter.

[5] Articles 19 to 24 of the African Charter contain peoples’ rights

[6] Articles 27 to 29 of the African Charter contain duties of individuals

[7] Article 27 of the African Charter

[8] Article 28 of the African Charter

[9] Articles 2 – 13 of the African Charter

[10] Articles 14 to 18 of the African Charter contain individual economic rights

[11] Victor O O Nmhielle, ‘The African Human Rights System: Its Law, Practice and Institutions’ The Hague: Martinus Nijhoff (2001)

[12] Article 24 of the African Charter

[13] The American Convention on Human Rights had not given sufficient attention to social, economic and cultural rights, thus the Organization of American States (OAS) resorted to adopting an “Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights ”

[14]The right to development, recognized under Paragraph 7 of the Preamble to the Charter, has never been proclaimed in any other internationalhuman rights instrument, and it leaves no room for preference with regard to the implementation of civil and political as well as economic, social and cultural rights. See also Article 22 of the African Charter relating to on economic, social and cultural rights as well as the right to development.

[15] Article 6 of the African Charter, which provides for the right to liberty and security of a person

[16] Article 8 of the African Charter, which provides for the freedom of conscience, profession and free practice of religion

[17] Article 9 of the African Charter, which provides for the right to express and disseminate opinions

[18] Article 13 of the African Charter, which provides for the right to freely participate in the government of one’s country

[19] Rachel Murray, ‘The African Commission on Human and Peoples’ Rights and International Law’ Hart Publishing (UK) (2000), p. 127

[20] The Charter was adopted in 1981, unlike the European Convention on Human Rights and the American Convention on Human Rights, which were adopted decades earlier.

[21] The Convention was adopted on 4 November 1950 and came into force on 3 September 1953.

[22] The Convention was adopted on 22 November 1969 and came into force on 18 July 1978. Two (2) Additional Protocols were added, “Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights” adopted on 17 November 1988 and the “Protocol to the American Convention on Human Rights to Abolish the Death Penalty” adopted on 8 June 1990.

[23] The UDHR was adopted by the United Nations (UN) General Assembly on 10 December 1948, and has still not been amended, although several specific human rights instruments (on women, refugees, children, on non-discrimination among other areas) have been adopted by the UN after the UDHR.

[24] Both the ICESCR and the ICCPR were adopted in 1966 and came into force in 1976.

[25] These include the Protocol to the African Charter on Human and Peoples’ Rights Relating to the Rights of Women in Africa, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child, the AU Convention on the prevention and Combating of Corruption and, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) among other treaties.

[26] Article 45(3) of the African Charter

[27] It allows it to have a wider scope of interpretation.

[28] SERAC and another V Nigeria (2001) AHRLR 60 (ACHPR 2001)

[29] The Commission recognizes and guarantees the right to shelter under paragraphs 60-63 of the decision of the case.

[30] The Commission found the Nigerian Government in violation of its obligation to guarantee the right to food of the people of Ogoniland. See paragraphs 64-66 of the decision of the case.