AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS

The adoption of the Universal Declaration of Human Rights in 1948 was followed by regional efforts towards the promotion and protection of Human Rights. On November 4, 1950 the Council of Europe agreed to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Convention came into effect in 1953 and was thus the First regional instrument on Human Rights. In 1969, the Inter-American Specialized Conference on Human Rights meeting in San Jose, Costa Rica adopted the Inter-America Convention on Human Rights. It came into effect in 1979. Africa, therefore, had the advantage of learning from the experience of other regions.

The Africa Conference on the Rule of Law held in Lagos in I961 declared, inter alia:

That in order to give full effect to the Universal Declaration of Human Rights of I948, this Conference invites the African Governments to study the possibility of adopting an African Convention on Human Rights in such a manner that the conclusions of this Conference will be safeguarded by the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory states.

The 18th Assembly of Heads of State and Government of the O.A.U.[1] meeting in Nairobi, Kenya adopted the African Charter In 1981. The Charter came into effect on 21st October 1986 after its ratification by a majority of African States. The Charter is also referred to as the “Banjul Charter” since Banjul; the capital of The Gambia hosted most of the conferences on the drafting of the Charter.

The African Charter is a digression from the traditional human rights instruments in more ways than one. By the time it was made the frontiers of human rights have been expanded. And the drafters of the Charter have learnt from the shortcomings of other regional instruments. Moreover, the African Charter was predicated on the principle of cultural relativity of human rights.

According to the Organisation of African Unity (O.A.U.) “All that could be said about this document … is that it strives to secure certain flexibility, equilibrium, and to emphasize certain principles and guidelines of our organization as well as the aspirations of the African peoples. It seeks not to isolate man from society but as well that society must not swallow the individual …’’[2]

The distinctive features of the African Charter are as follows. In the first place, the Charter not only provides for the first generation negative rights (civil and political rights), but also provides for social economic and cultural rights.

In this respect the charter bears resemblance to the American Convention but is distinctive from the European Convention.[3] Secondly, the Charter recognizes some third generation or solidarity rights as belonging to all peoples.

This recognition of people’s rights is one of the most radical and controversial innovations of the African Charter. It was perhaps, the first time the concept of people’s right is included in a binding legal instrument, though the phrase “peoples” has been referred to in the U.N. Charter and the two Covenants of 1966. And earlier in 1790 the Decree of the French Constituent Assembly made reference to both rights of man and rights of people.

The concept of people’s rights emphasize collective or solidarity rights for the larger group or the society or community, including the state and the international community to which the individual is interlinked.[4]. The human rights concept was first developed in capitalist environment which sees the importance of die individual.

People’s rights on other hand tilt the focus from the individual to the wider society to reflect the African culture of mutual communalism as opposed to Western culture of nihilistic individualism. However, the defect here is that the Charter did not define the term “peoples”. Consequently, the meaning of “peoples” as used in the Charter cannot be stated with much confidence.

The inclusion of the right to development is yet another significant innovation. The rationale for including the right to development is that most African States are still under-developed or at best developing. In effect, the citizens cannot afford the basic necessities of life which will enable them to enjoy the negative rights.

The African Charter scores yet another first in being the only binding instrument to stipulate some individual duties to the family, the society and the states.[5]This is in consonance with the claim that the traditional African society is based on obligations as the organizing principle of kinship and family relationship. Individual rights and freedoms are therefore to be exercised with due regard to the rights and freedoms of others and collective interests.

The copious reference to morality in the African Charter is unique and exemplifies the importance that Africans attach to morality in personal, national and international affairs. Furthermore, the African Charter guarantees the following rights as well as imposes the following duties.

Rights of Individuals

Rights of individuals guaranteed by the Charter include: right to the enjoyment of rights without distinction of any kind (Article 2); right to equality before the law and the equal protection of the law (Article 3(1) & (2)); right to life (Article 4); right to the dignity of the human person (Article 5); right to liberty and security (Article 6); right to have cause heard (Article 7); right to freedom of conscience, the profession and free practice of religion (Article 8); right to receive information and to express and disseminate opinions (Article 9); right to freedom of association (Article 10); right to freedom of assembly (Article 11); right to freedom of movement (Article 12(1)); right to asylum and freedom from arbitrary expulsion from a state (Article 12(3) & (4)); right of participation in government, and equal access to the public service and public property (Article 13(1). (2) & (3)): right to work under equitable and satisfactory condition (Article 15); right to physical ‘and mental health (Article 16); right to education and participate in the cultural life of the community (Article 17); right to property (Article 14).

People’s Rights

Peoples’ rights guaranteed by the Charter include: equality of all peoples (Article 19); right to existence and self-determination (Article 20); right to free disposal of natural wealth and resources (Article 21); right to economic. social and cultural development and equal enjoyment of the common heritage of mankind (Article 22); right to international peace and security (Article 23); right to satisfactory environment (Article 24).

Duties of State Parties to the Charter

States parties to the Charter have the following duties imposed by the Charter: duty to promote rights and freedoms contained in the Charter (Article 25); duty to guarantee the independence of the courts and to allow the establishment of Human Rights Organisations (Article 26)

Duties of Individuals

The Charter imposes the following duties on every individual within the state parties: duty to the family, society, the state and international community (Article 27); duty to respect and not discriminate against fellow beings (Article 28); duty to preserve the harmonious development of the family, to respect his parents and to maintain them in case of need (Article 29(1)); duty to preserve his national community (Article 29(2)); duty not to compromise the security of his state of origin or residence (Article 29(3)); duty to preserve and strengthen social and national solidarity (Article 29(4)); duty to preserve the independence and territorial integrity of his country (Article 29(5)); duty to pay taxes (Article 29(6)): duty to preserve African cultures (Article 29(7)); duty to contribute to the achievement and promotion of African Unity (Article 29(8)).

Restrictions on Rights Guaranteed by the African Charter

The African Charter on Human and People’s Rights is peculiar in its extensive use of claw-back clauses and the absence of derogation clauses in the Charter. Several articles in the Charter are qualified by claw-back clauses in that they provide for the limitation of the rights that they guarantee by law without prescribing the standard or the purpose of such laws.

Some articles of the Charter provide for the limitation of rights for specified purposes, for instance, in the interest of national security,[6] or in the interest of safety, health ethics public need or general interest or the right of others morality or common interest. Nevertheless, there is no provision that particular restrictions should be necessary in a democratic society for achieving the specified purposes.

Both the European and the Inter-American Conventions Employ limitation clauses to qualify some of the rights they guaranteed. However, the limitation clauses stipulate the circumstances under which the rights could be limited. In addition, standard was set for the laws which could limit these rights.

Rights not Qualified Under the African Charter

The following rights under the African Charter are not qualified: right to equality before the law (Article 3); right to the dignity of the human person and prohibition of torture and slavery (Article 5); right to have cause heard (Article 7); right to receive information (Article 9(1)); right of equal access to public service and public property (Article l3(2)&(3)); right to work under equitable and satisfactory condition (Article 15); right to physical and mental health (Article l6); right to education and to take part in cultural life (Article 17(1) &(2)); rights of women and children (Article 18(3)); the people’s rights guaranteed in Articles 20-24.

The absence of qualification of some of these rights is not a credit to the Charter. For instance, it will be difficult to appreciate the extent of the right to education in the absence of qualification. Does it mean that citizens of the state parties have the right to free university education?

Read also: Institutional Framework of Arbitration in Nigeria

Derogations from Rights under the African Charter

The Charter has no provision for suspension of rights during periods of emergency. The European and Inter-American Conventions provide for derogation from certain rights during emergency, though the measures taken must be strictly required by the emergency.

The two Conventions went further to require state parties to inform other state parties whenever there is derogation from the rights guaranteed under the Conventions. In consonance with the position of international law, these conventions made certain rights non-derogable. However, more rights are non-derogable under the Inter-American system than under the European system and under international law.

The European Convention applied claw-back clause only in respect of one right, while the Inter-American Convention applied claw-back clauses in respect of two rights. On the contrary, the African Charter employs claw-back clauses to qualify seven of the traditional civil and political right that it guarantees. Not only that state laws can restrict these rights but the standard or purpose of such laws is not indicated.

The African Commission on Human Rights has however held in Legal Resources Foundation v Zambia[7] that no state party to the Charter should avoid its responsibilities by recourse to the limitations and claw-back clauses in the Charter.

According to the Commission, the Charter cannot be used to justify violations of its sections. The purpose or effect of any limitation must also be examined as the limitation of the right cannot be used to subvert rights already enjoyed.

The Commission has also held that limitations on rights must be proportionate, necessary and acceptable in a democratic society.[8]  It was also held that limitation clauses must not undermine international standards.

There is no doubt that a state of emergency provides a fertile ground for the encroachment on human rights. The other regional instruments stipulate that measures taken in times of emergency or war, which have the effect of derogating from guaranteed rights, must be to the extent and time strictly required by the exigencies of the situation and is non-discriminatory in nature. The African Charter did not expressly provide that certain rights are non-derogable at all times.

Umozurike has pertinently observed that the Situation is not very grim if the Charter is read as a whole, including Articles 60 and 61.” Article 60 of the African Charter provides that the Commission shall draw inspiration from international law on human and people’s rights, including the Charter of the United Nations, the Universal Declaration of Human Rights and other instruments adopted by the United Nations and by African Countries in the field of human rights.[9]

 

[1] The organization of African Unity (OAU) has metamorphosed into the African Union (AU). This is pursuant to the adoption of the charter of the African Union

[2] O.A.U Doc. AHG/102/XVII, Nairobi; June 1981

[3] Social Charter were subsequently adopted to fill the gap

[4] Rembe, N.S. The system of Protection of Human Rights Under the African Charter on Human and peoples’ Rights: Problems and Prospects, Human and Peoples’ Rights Monograph series No.6 (Lesotho: Institute of Southern African Studies, 1991) P.15

[5] Weston, B.H. “Human Rights – Questions for Reflections and Discussion” in Claude, R.P. et. al.(ed.) Human Rights in The World Community: Issues and Action (Pennsylvania: Pennsylvanian Press, 1989) p.26

[6] Articles: 11 (freedom of assembly); 12(2) (right to leave or return to one’s country)

[7] (2001) AHRLR 84 at 94-95

[8] Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998)

[9] U.O. Umeozurike “The Protection of Human Rights Under the Bangal (African) Charter On Human And People’s Rights” (1988) 1(1) A.J.I.L p. 68

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