The African Charter on Human and Peoples' Rights
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The African regional human rights system
The African Charter on Human and Peoples’ Rights came into existence on the 21st October 1986 and was an enormous step in recognizing and implementing human rights in Africa. The charter not only provides the guarantee of rights within all African nations, but it also helps the establishment of a body, the African Commission, to monitor the effectiveness of the rights contained in the charter. The African Charter contains most of the fundamental rights mentioned in UN Charters and other international treaties, such as political and civil rights as well as ESCRs. The formation of human and peoples’ rights under this Charter is distinct in its conceptualization of collective rights known as human and peoples’ rights. It has also acknowledged a large range of those people’s rights, which were not previously recognized in any treaty.
African Charter, thus, internationally recognizing the rights of all people to self-determination, also emphasizes on the right of peoples’ to equality, existence and development. One cannot avoid wondering if this novel approach of the African Charter contains practical value to the benefit of peoples’ rights in African states, considering the history and prevailing situation of the African continent.
This paper seeks here to examine how peoples’ rights are essential to consider the human rights of unprivileged groups such as minorities. With respect to this, some of the issues that this paper focuses and seek to addresses are: What is the role of peoples’ rights in addressing these human rights concerns? What are the serious human rights concerns in the African continent? While trying to highlight these issues it is also necessary to observe the essence of human and peoples’ rights under the Charter, and the legality of the African Commission on peoples’ rights.
In this respect, the key issues are: What are the socio-political and historical factors that compelled the vast elaboration of human rights in the African Charter? How peoples’ rights fit within the given framework of the African Charter and who are the key beneficiaries of peoples’ rights.
To evaluate these and other similar issues, this paper explores the concept of human and peoples’ rights under the African chapter and also discusses the status and legal nature of human and peoples’ rights of the African Charter. Finally, the paper ends with some of the serious peoples’ rights concerns in Africa that make human rights particularly prominent in the African continent.
The status of peoples’ rights under the African charter
Regional human rights instruments are usually more effective than UN instruments, because they are capable to understand regional conditions much better. Significantly, the UN itself always promotes the creation of regional systems to deal with human rights and security, which should comply with UN mechanisms. The instruments of African human rights are, Africa-specific, and should obviously be expected to consider certain customs and values peculiar to the African continent.
In terms of its conceptuality, the African Charter bears significant resemblance to the contents mention in Universal Declaration than to the Inter-American and European regional human rights systems. The philosophical foundation emphasizing the equal human rights that the African Charter mentions in its seventh Preamble paragraph follows as:
Convinced that … political and civil rights cannot be dissociated from
ESCR in their formation as well as universality and that the satisfaction of ESCR guarantees for the enjoyment of political and civil rights.
Besides its eloquent Preamble, this charter underscores the significance traditionally attributed to human rights concepts in the African continent. This instrument divides into three focal parts of 68 articles. Part I consist of a set of Rights and Duties (articles 1-29), while Part II contains ‘Safeguards and Measures (articles 30-63). Part II further subdivides into Organization and Establishment of the African Commission on Human and Peoples’ Rights, Mandate of the Commission, Procedure of the Commission and Applicable Principles. Part III, finally deals with ‘General Provisions’ (articles 64-68).
Despite its deficiencies, many scholars recognize various distinctive features of the African Charter, what is significant and striking are the dominating endorsement of the interdependence and principles of indivisibility in the African Charter. This charter, which is the leading African Rights Mechanism, provides provision for all human rights of Africans within the same context, and equal force.
The African Charter mentions a long list of human rights expressed as the rights and entitlements of each person (articles 2-18) and all Africans (articles 19-24). Some of the key rights mentions in the African Charter are such as;
- Individual rights discourage on the prohibition of discrimination;
- The inviolability and integrity of the human person;
- The legality in principle of equality and protection of the law for everyone;
- The protection of human dignity by implementing the prohibition of all forms of degradation and exploitation;
- Freedom of information and expression of opinion;
- Freedom of religion and the right of a fair trial;
- The right to freedom of asylum and movement;
- The right of assembly;
- The right to property and right of participation in the political process, including access to public affairs and facilities;
- The right to fair working conditions, the cultural life, health and education;
- Protection to women, children, the elderly and the disabled people.
Thereafter, the African Charter continues further to elaborate a number of key issues in service of mankind such as peoples’ rights, the right to exercise liberty over natural resources and their wealth, the right to socio-economic development and self- determination, right to economic, social and cultural development, right to a protective environment as well as right to international and national security and peaceful living.
It is noteworthy to observe that, throughout the African Charter, explicit derogation clause is absenting as is traditional in human rights treaties. This simply implies that no African government has an authority to abridge these rights, even in case of emergencies.
While much content is available about the claw back clauses in the content of the African Charter, it most probably has skipped from the scrutiny of experts as there is no such mentioning of claw back clauses with regard to the ESCR provisions in articles 15 to 24. These clauses are in unrestricted, unqualified and plain language.
Scope and Nature of Obligations Created
The fundamental obligation of states under the African Charter is similar to what mentions the International Bill of Rights – protection of human rights and civil liberty.
Article 1 of the African Charter creates the fundamental obligation of states to recognize the duties and rights enshrined in the African Charter, and undertake to implement legislative or other suitable actions to give effect to them. The logic of this obligation noticed in article 62, which makes it obligatory for states to submit periodical reports on the legislative or any other measures they have adopted for giving effect to the African Charter.
The African Charter extends further to spell out the promotional responsibilities of the African States. Under article 25, it is obligatory for all African states to ensure and promote the peoples’ rights and freedoms through education and public teaching. Supplementing this, in article 26 there is another provision mentioned compelling states to provide the guarantee for the independent functioning of courts and allow the improvement and establishment of appropriate national institutions assigned with the protection and promotion of the rights, freedoms and civil liberty in the African Charter. Some crucial points also surface from a synchronized study of these provisions. The language used in articles 1 and 62 unveils the overall purpose of initiating an active human rights attitude in the African continent, rather than a simple set of utopian goals.
It is evident that the human rights posture developed by the African Charter equalizes all its provisions: Political and civil rights has to be given the same priority as ESCR, and also peoples’ rights. However, it is regrettable to observe that the analysis and interpretation by the intellectuals under estimate the value of the ESCRs content of the African Charter.
While commentators who assume that the Charter provides no opportunity for programmatic realization is far between, recent and few, there is an enormous number of intellectuals who either strongly or subtly campaign the idea of ESCRs being inferior to the political and civil rights in the African Charter, or of being incompetent of implementation.
As an example, while admitting the indissoluble link in the universality and conception of political and civil rights and ESCRs, Rembe derived his analysis of the Charter by mentioning that it is difficult to make ESCRs justifiable in the same sense as political and civil rights – without providing any legal, empirical or moral authentication. Thus, despite the clarity in the text of the African Charter, the ample travaux préparatoires, and opinions of the distinguished African jurists, the effectuation question remains an albatross in vitalizing the ESCRs provisions in the Charter.
The reasons for this are surely unconvincing. The prolonged historical and philosophic debates in which human rights entangled in the cold war years, ultimately, gave birth of human rights treaty system within the United Nation. Moreover, the endless consequences of brutal dictatorship, culture of maladministration, and colonialism to which African scholars have for long been accustomed and exposed, African scholarship could not evade pessimism in its appreciation and uniqueness of regional human rights system.
After all, many scholars view the Charter as a product of neocolonialists and oppressors. That cynical approach to human rights concerns is simply one of the innumerable symptoms of the distorted intellectualism that permeates the African human rights terrain. The misconception about the nature of ESCRs obligations under the Charter has also put many states in dilemma. After scrutinizing the reports, filed by African states under article 62 of the African Charter expose the wrong perception among many states in balancing their liabilities under the Charter, with the reformist requirements under ICESCR. This perception is erroneous, while taking into account the Guidelines mentioned by the African Commission on the reporting process. Under these Guidelines regarding the Contents and Form of Reports on ESCRs, the African Commission specifies that:
As under political and civil rights, African Commission recommends that the reports under social and economic rights should consist of two types: initial reports and periodic reports.
It was not coincidental that the monitoring body of African regional human rights treaty described ESCRs as fundamental freedoms. They have to be reported as comprehensively as political and civil rights. Scholars often contend that while ESCRs are subject to progressive implementation under ICESCR and in case of unavailability of any textual inference, the spirit of ESCRs provisions suggest immediate implementation under the African Charter.
The Guidelines for Periodic Reports indicate that Article 20 of the African Charter demands that all communities have equal rights for participation in political activities, and possess equal opportunities of the country without any discrimination. In this light, rights of people are influential to make the state responsible to the will of its people.
Discrimination is one of the key issues concerning minority community that underlie many of the minority conflicts involving groups and the state. This is not simply a result of guarantee for equality and nondiscrimination. For certain groups such as the San of Botswana or the Massai of Kenya, it also results from the distinguishable feature of their characteristics, their minority status.
In one of the periodic reports, African Commission has found discrimination of Batwa community. The discrimination observed is in the areas of access to justice and education, social services, and job opportunities. Many problems of the state-people relationship have resulted to implement a homogenous national culture on the diversified ethno-cultural groups. Under the African Charter, all African states will take care of the identities and cultures of non-dominating groups and provide a protection to various minorities against insults of their cultural rights.
In the African Charter, the principal mechanism that prevails to ensure and monitor the states complying with their treaty accountability is the African Commission. Article 30 of the Charter establishes the African Commission with the tripartite mandate to interpret, promote, and ensure the peoples’ rights. The responsibility of African Commission is to abide by the rules of Charter, and the African Commission carries out its mandate in numerous ways: through the complaints procedure, state reporting procedure, and with its promotional programs. The state reporting mechanism enables the African Commission to ascertain what measures a state is practicing to secure the provisions of the African Charter.
In certain cases when the African Commission has to make a judgment on the continuation of violation of human rights, the Commission often collects the data to find out as to how much portion of the population in a state is suffering. The usage of the term “portion of the population” in such cases by the Commission does not prevent an understanding that minority communities possess peoples’ rights under the Charter. This holds true in case of a self-identifying minority. There had been two such examples of the Katanga case and the Ogoni cases, which highlight this issue. In the case of Katanga the complainant who is the president of the Peoples’ Congress of Katanga, approached the Commission to recognize, the independence of Katanga on account of Article 20(1) of the African Charter.
It is worth noting two issues. First, the Katangese constitutes only a fraction of population of Zaire. Second, they distinguish themselves as people and thus, empowered to rights of people under the African Charter. African Commission, while deciding the case did not hesitate to refer Katangese as people without holding it significant to ascertain whether Katangese constitute one or more ethnic group. The African Commission then arrived at the conclusion that the case holds no grounds of violating any rights of people under the African Charter. As such, request for independence is not significant under the African Charter. Here, it is worthwhile observing the differentiation that the Commission anticipated in its judgment between Katanga and the state of Zaire.
Similarly, the Ogoni case also involves a violation of rights of people, namely the right to dispose of one’s natural resources and wealth under Article 21 and the rights to environment protection under Article 24. Although, in its judgment, the African Commission used the phrase “people” interchangeable with the Ogoni people and the Ogonis, it was apparently to emphasize the distinctness of a community, with its own place in the Nigerian community.
The Commission pronounced that Nigerian state violated the rights of Ogonis, inter alia, to freely disposal of one’s natural resources and wealth. This presumes the Commission’s view that the Ogonis hold peoples’ rights under the African Charter.
The clear differentiation that the Commission made between the state, Nigeria, and the Ogoni people by referring them as a group, confirms this point. Certainly, the distinction means to treat group as subjects of rights of people and the state being the bearer of obligations that rights enforce.
Individual complaints procedure
The individual complaints mechanism of the African Commission has been remarkably active in reacting to a large range of human rights insults in African states. Nevertheless, certain cases brought before the Commission point to total imbalance in the communications.
A survey conducted by the African Commission between 1995 and 2002 reveals a considerable difference between the communication dealing with political and civil rights and ESCRs in the African Charter. Even when there were effective communications that require crosscutting rights, the African Commission had been flexible to excise the ESCRs portion from its remedial consideration. The contradiction of the Commission becomes clear when one measures the way in which it deals with communications on the numerous rights in the African Charter.
One peculiar decision would support this point. In Malawi African Association v, Mauritania, the Commission presented its capability to elaborate on the civil and political rights of the African Charter and offer specific and concrete remedies in unequivocal language.
The African Commission, in this case, held that Mauritania government must setup an independent enquiry to find the fate of disappeared persons, initiate diligent steps to replace the identity documents collected from the expelled citizens, reinstate persons dismissed from their jobs without conducting enquiry process, ensure appropriate compensation for the violations, and implement legislative measures to abolish slavery. This was one of the enormous opportunities where the African Commission slipped to elaborate on the content of ESCRs as well as to draw the remedial implementation.
This paper attempts to highlight some of the legalistic obstacles to the actual conceptualization of ESCRs obligations with regard to African continent in the broader peoples’ rights discourse, and attempt disproving the crucial theoretical issues, namely, resource constraints and justifiability. In the course of the above, this paper highlights the wide assemblage of regional and international human and peoples’ rights frameworks that can encourage an integrative rights-based approach to peoples’ development in African states, indicating the political and legal considerations that should direct the achievement of human development rights obligations.
The paper also emphasizes on the institutional and normative frameworks of ESCRs at the African regional levels and their significance for the efficacious implementation of ESCRs at all level in the African states, in a manner that strengthens human development. The African Charter shows ample ESCRs protection mechanisms and yet there is an asymmetry of weak realization. It points out a wide range of the legalistic problems that have come up in the course of the textual explanation of ESCR’s norms. The final analysis indicates that, despite numerous constraints, ESCRs consists of promotional and protective elements that can enhance their value as legalistic rights.