The Charter of OAU and Constitutive Act of African Union
It is common knowledge that in Africa the issue of the protection of human rights and fundamental freedoms has long been considered not an issue of the first priority and in any case as the exclusive province of states. It is also well known that until recently states have systematically taken refugee behind the principles of national sovereignty and non-interference in internal affairs to avoid all discussion of the human rights situation in their territory. According to the view of Ougergouz, this marginalization by the African States of the question of the rights of individuals within their jurisdiction is first expressed in the Constituent Charter of the OAU adopted on 23 May 1963 at Addis Ababa (Ethiopia). This landmark legal and political document only refers expressly to human rights in its ninth preambular paragraph. This affirms the conviction of the African leaders that “the Charter of the UN and the Universal Declaration of Human Rights, to the principles of which [they] reaffirm [their] adherence, provide a solid foundation for peaceful and positive cooperation among states” and its article II (1(e)), where it is stated that one of the purposes of the OAU is “to promote international cooperation, having regard to the Charter of the United Nations and the Universal Declaration of Human Rights.” Apart from these few references, the OAU Charter focuses solely on states. Articles V & VI devoted to the rights and duties of member states do not place any obligation on the state vis-à-vis the people or individual, where as the principles of national sovereignty and non-interference in the internal affairs of states are laid down forcibly in Art.III.
Therefore, according to the above assertion the initial question that must be considered is why the OAU for many years fail to address adequately the issue of human rights. To this end, Naldi contends that the principal objectives of the OAU have been to defend the sovereignty and territorial integrity of its member states and to rid Africa of colonialism and racism. Conceived and born during the cold war and the liberation struggle, the OAU remained in that mind set for a generation. Thus, its provisions centre on issues such as the non-interference in internal affairs, sovereign equality of states, the fight against neo-colonialism, self-determination in the state context and the peaceful settlement of disputes.
Mathew summarizes the then position and attitude of OAU as follows:
The OAU Charter, for instance, does not contain any provision for the protection of the rights of the African masses . . . evidently the emphasis in 1963 was on the state rather than the peoples. As president Nyerere of Tanzania, one of the founding fathers of OAU, has pointed out, the OAU Charter spoke for the African peoples still under colonialism or racial domination, but the countries emerged to nationhood, the charter stood for the protection of their heads of state and served as a trade union which protected them. In other words, the OAU appears to be an institution of the African heads of state, by the heads of state and for the heads of state.
Thus, R. Murray concludes that any concept of human rights within the OAU went little beyond the notion of self-determination in the context of decolonization and apartheid in South Africa and where other aspects of human rights are mentioned in the Charter, which is broad and general and related to the relationship among states. Further, any threats to human rights appeared to be reflected in the OAU Charter as coming from outside the continent, something which African unity may help to prevent. Thus, to Murray it was the two issues of self-determination and apartheid/racial discrimination in Southern Africa that were central to the OAU at its formation and which appeared to have guided its approach to human rights throughout its later years.
However, it is also important to note that some peoples such as Birame Ndiaye contends that the lack of significant allusion to human rights protection by the OAU Charter should not be readily criticized. His main reason for this suggestion is that the “constitutional instruments of the other regional organizations and the United Nations also contain relatively few references to human rights”. He, however, agrees that these other organizations go a step further in constructing a system for the promotion and protection of human rights, backed by legally binding instruments, which was not the case for the OAU. The OAU Charter’s emphasis is on the rights of peoples to self-determination and struggle against racial discrimination in response to the ravages of colonialism. He further contends that the normative value of OAU Charter on matters of human rights can be inferred by looking at the preamble and the purposes and objectives of OAU Charter. The OAU Charter refers not only to the constitutional text of the UN Charter, but also mentions that the UDHR contains principles to which OAU states parties reaffirm their adherence . . . Preambles generally set the tone for positive provisions that might subsequently be embodied in the relevant instruments. Moreover, the current trends in the interpretation of international instruments attach considerable importance to the preamble of these instruments. The preamble to the Charter of the UN is often involved in interpreting that instrument. In particular, the phrase of the preamble of the OAU Charter makes reference to the universal Declaration which is to be observed as much as the UN Charter.
Therefore, making provisions in preambles of basic instruments and subsequent adoption of implementing instruments are all steps which form part of a growing legal system. Consequently, he concludes that by adopting the preambular provisions of the Charter, its member states have given indication of a desire to take steps in creating normative rules for the protection of human rights even if rights may not be effectively established if they remain only as preambular provisions.
The other area, where attempts have been made to bring out the human rights content of OAU Charter is the statement of the purposes set forth in the Charter under Article II. The Article provides, inter alia, as a purpose of the OAU, the promotion of international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights [Art. II (1) (e)].
Thus, the reference to the UN Charter and the Universal Declaration in article II of the Charter of OAU is an indication of the important source of the growing regional legal system. The incorporation of the UN instruments can be said to be unequivocal creation of the legal principle emphasizing the importance of human rights in the African region along the lines of the UN Charter and the Universal Declaration, and the need for taking steps to interpret it and explain how it applies in a variety of circumstances in the region.
V.U. Nmehielle reminds us that the second paragraph of the preamble to the Charter of the OAU accentuated the fact that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples.” It is further relevant that this paragraph was involved later in the second preamble of the African Charter on Human and Peoples’ Rights, and that it was in the name of these human rights principles that the African peoples fought their battle for independence, and that it was due to non-observance of human rights by the colonial powers that other states come to their assistance. This was the reason why their main weapon at that time, the Universal Declaration, was mentioned twice in the Charter of the OAU. At that time, it was the African states’ most cherished document, and at the first International Conference on Human Rights, held at Tehran in 1968, all the new African states supported the statement that the Universal Declaration constituted “a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of human family . . .”
Accordingly, Nmehielle concludes that the notion that the OAU Charter excluded human rights promotion and protection from the purview of its purposes and objective principles is not totally valid. Similarly, the view that allusions made to human rights in the charter were only reduced to a simple reference to the Universal Declaration, and thus can not be regarded as entailing an obligation for the member states, misses the point. This is because every state must observe the basic human rights if it wants to be a part of the world community. The obligation is therefore clear, even if international enforcement is limited to gross violations. It is also further contended that though the principle of sovereignty and non-intervention in the internal affairs of states have always stood in the way of human rights agenda in Africa(Art. III (2)), the effect of such principle is continuing to diminish recently.
Generally, it must be stressed that human rights protection was the main weapon against the colonial powers in African, and by accepting them wholeheartedly the peoples of Africa got the support of other states against the violations of their human rights by those powers. The OAU, no doubt, originally failed to provide for early ways of dealing with home grown violations that accompany African self-rule. According to Eze, at the time the Charter was adopted, African states were not prepared to allow any organ other than their domestic institutions to deal with matters that touched on the protection of human rights. Their preoccupation was to stamp out colonialism in all its forms in Africa. African states might have objected to imposition on them of a global human rights commission, but as soon as they had a chance to concentrate on that issue, they established a regional one in furtherance of their obligations.
Therefore, it was stated that when independence was achieved and the regime of apartheid ended, it became difficult for African states to say human rights were just a domestic concern. As Clapham notes:
In bringing their outrage to the attention of external and especially Western audience, however, African governments and other anti-apartheid campaigners both explicitly breached the frontiers of juridical sovereignty and raised issues relating to the treatment of individuals which could equally be raised with reference to their own states. Once the human rights records of African ruled-states started to attract external attention, it was correspondingly harder to claim the protection of sovereign statehood.
Therefore, a land mark development in the OAU’s approach to human rights was the adoption of the African Charter on Human and Peoples’ Rights (usually called as the Banjul Charter, after the capital of its adoption, Gambia) on 27 June 1981. With its coming into force in 1986, human rights were thus officially recognized in the OAU. This was later on followed by a series of declarations and conventions addressing particular areas and special categories of human rights such as on children, women, youth and so on. Detailed analysis of the general protection under the Banjul charter and other specialized human rights instruments will be in order in the subsequent sections and chapter.
The last point deserving a close attention is the position and emphasis given to protection of human rights under the organizational transformation of African states, that is, under the newly established regime of African Union. The initiative to transform OAU into AU was started by the adoption of Sirte Declaration in Libya on 9 September 1999 by the Fourth Extraordinary Summit of OAU’s Assembly of Heads of State and Government experts, parliamentarians and ministers of OAU member states, the Constitutive Act of the African Union was adopted in July 2000 in Lome, Togo.
The provisions of the resulting Constitutive Act suggest that human rights will indeed play a greater role in the work of the Union than they did in the OAU. Some of the shortcomings of the OAU Charter as a true normative human rights instrument are now addressed by the Constitutive Act of the new African Union. The Act has placed the promotion and protection of human rights in the agenda of the regional body.
Thus, the preamble of the Act recalls the heroic struggles waged by our peoples and our countries for economic independence, human dignity and economic emancipation. Human rights are mentioned specifically with states being determined to promote and protect human and peoples’ rights, consolidate democratic institutions and culture and to ensure good governance and the rule of law [preamble 9 of the Constitutive Act]. The central objectives, in Article 3, and principles, in Article 4, of the Union noted that the Union’s aims include not only achieving greater unity and solidarity between African countries and the peoples of Africa and accelerating development but also the need to ‘promote peace, security and stability on the continent [Art. 3 (f)]. It is recognized that there is a need to ‘encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights’ and promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’ [Art. 3 (e) (h)]. Hence, states should respect the need for ‘peaceful co-existence of member states and their right to live in peace and security (Art. 4 (i)), promote gender equality, have ‘respect for democratic principles, human rights, the rule of law and good governance’, respect the sanctity of life and condemn unconstitutional changes of government [Art. 4 (1), (m), (0) & (p). Most importantly, the cherished policy of non-intervention in the interval affairs of member states, which was the creed of the OAU Charter, ceases to be a principle of African States. It has rather become a principle of member states of the African Union to have the “right . . . to intervene in a member state pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity [Art.4 (h)].
On the face of it, therefore, the Constitutive Act of the AU appears to give an important place to human rights and an indication that they will play a significant role in the AU. However, according to R. Murray there has been considerable concern that institutions such as the African Commission and the African Court on Human and Peoples’ Rights do not appear to feature in the Act. Whilst some fear that this meant these bodies were being sidelined or forgotten under these new structures, it perhaps indicates lack of coherence in the Act as a whole to the previous structures of the OAU, when other organs, such as the central organ, were omitted.
What is perhaps more concerning is that, despite being mentioned in the substantive provisions of the Act, in relation to the mandates of the various institutions within the Union, human rights are not listed under any of them expressly [See Arts.13, 18].
By reforming the OAU, there is no doubt that African has started responding to global reorganization and is making every effort to reposition itself in global politics and relations. The Constitutive Act of the African Union shows a departure from traditional Africa’s fear of “freedom for the peoples” from their own home rule. While the practical application of the Constitutive Act is yet to be seen, it is a bold step, which will equip the peoples of Africa in pressing for good governance and accountability, respect of human rights, rule of law, democratization process, economic prosperity and respect for human rights.