The African Charter on Human and Peoples’ Rights (ACHPR)
The aim here will be to describe the movement to promote human rights in Africa, which served as a prelude to the adoption of the African Charter on Human and Peoples’ Rights. While it is hard to assert that the efforts deployed in this field were decisive to the emergence of this piece of legislation-certain events playing the role of catalyst in this process-the favourable effects of these events cannot be underestimated. The process of awareness set in motion and orchestrated by certain non-governmental organizations, including some African ones, as well as many UN initiatives, in fact contributed substantially to the creation of a favourable climate for nurturing the idea of regulating human rights in Africa. Therefore, from the late 1970s onwards, a number of important events define the OAU move to increased attention to human rights. Encouragement at the UN level for regional human rights mechanisms, NGO lobbying and a recognition by some African leaders themselves that human rights in another state were also their concern led into the adoption by the OAU of the ACHPR. Thus, it is noteworthy to highlight the historical background surrounding the codification and adoption of ACHPR before embarking on the detail examination of its normative contents and institutional mechanisms.
Historical Background and Drafting Process of ACHPR
Before going to the outlining of the stages of development in the drafting and adoption process of the ACHPR, a brief sketch of the underlying reasons leading to the formation of African human rights mechanisms is a question of priority. Scholars proffer different reasons behind such initiative. According to professor Umozurike, a onetime chairman of the African Commission, development on the international plan at that time favored an idea of an African human rights mechanism. These developments included the Helsinki Final Act of 1975, signed by the Untied States, Canada and thirty Western and Eastern European Countries, which emphasized respect for human rights, and the emphasis placed thereafter by the next United States president, Jimmy Carter, on human rights in the international relations of the United Sates.
The Carter administration used human rights as a criterion for allocating economic aid to third world countries. The attempt to make the allocation of such aid conditional on respect for human rights during the renegotiation of the Lome Agreement should be seen in the same light.
Okoth-Ogendo, on the other hand, contends the decision to establish the mechanism was taken not because there was a juridical void with respect to the promotion and protection of human rights at the continent or domestic level. He listed three reasons for the establishment of the mechanism. First, because the Charter of the OAU affirms commitment to the UN Charter and the Universal Declaration, the ratification by African states of those instruments in addition to other human rights instruments, imposed an obligation for the promotion and protection of human rights. Second, there was no existing machinery at the regional level for institutional coordination, supervision, or implementation of efforts towards the promotion and protection of human rights, despite international commitments to that effect. Thirdly, the need to develop a scheme of human rights, norms and principles founded on the historical tradition and values of African civilizations.
One may inclined to agree with the reasons given by Mr. Okoth-Ogendo, which confirm that there was in deed a juridical void in the promotion and protection of human rights in Africa. However according to another scholar, it was above all a series of events in the continent of Africa itself which was to lead directly to the decision of African rulers to lay the foundations for regional human rights legislation. The focusing of international public opinion on the , to say the least, singular conduct of some of their colleagues meant that African leaders could no longer remain indifferent as they saw Africa’s image in the world being tarnished still further. They were duty-bound to react to the many abuses of human rights, for e.g. in Uganda, Equatorial Guinea, Central African Empire, and so on.
Now the next step will be examining the role of various groups, especially non-governmental organizations (NGOs) and governmental organizations at the stage of preparatory works and the final adoption of the African charter.
- The Role of Non-governmental organizations
The Role of Non-governmental organizations, both international and African-based in the initiative of African regional human rights development (for normative as well as institutional set up) was of some immense significance. The first Congress of African Lawyers was held in Lagos, Nigeria, from 3 to 7 January 1961 by the International Commission of Jurists. The Congress was attended by 194 lawyers from 23 African states and 9 states from other continents. The topic chosen for this first event, the “rule of law”, was particularly interesting in the transitional phase through which the continent of Africa was then passing to self-rule from long years of colonial domination. The resolution was adopted at the end of the conference-widely known as the “Law of Lagos”. The highly significant paragraph 2 of this law states that a government can only maintain adequately the “rule of law”: if the legislature genuinely represents the majority of the people. It continues to state another crucial part of the resolution in paragraph 4 as:
“That in order to give full effect to the Universal Declaration of Human Rights of 1948, this conference invites the African Governments to study the possibility of adopting an African Convention of 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”.
In another later Conference of Jurists from French-speaking African countries convened in Dakar from 5 to 9 January 1967, the participants adopted the “Dakar Declaration” in which they, inter alia, affirmed:
that once the problems resulting from heritage of the colonial era have been isolated, it becomes apparent that the basic requirements of the Rule of Law are not essentially different in Africa from those accepted elsewhere; that the economic, social and cultural difficulties African faces today cannot justify the abandonment of the fundamental principles pf the Rule of Law, and that it is the duty of all jurists to make these principles the dynamic concept through which progress is achieved.
The conference also stressed the independence of the judiciary for the best safeguard of legality and ensuring an equitable balance between the requirements of the public well-being and the rights of the individual. In another seminar held in Dares Salaam (Tanzania) in September 1976 by the International Commission of Jurists on the topic of human rights in one-party states, it was recognized that, under a single- party regime, the limitation of political activity to a single party implies restriction of the freedoms of association and expression.
The year 1978 may be regarded as a pivotal moment in the process of the conceptualization of human rights spearheaded by the African intelligentsia. A more comprehensive approach to human rights emerged. The conclusions of two conferences of African jurists are worth examining in this light.
The former of these was held at Butare (Rwanda) from 3 to 7 July 1978 on human rights and economic development in Francophone Africa. Two of the four topics considered were the relationship between human rights and economic development and the effectiveness and appropriateness of international initiatives for the promotion and protection of human rights. As regards the former, the majority of the participants recognized that the lack of economic resources in many Francophone African countries did not justify lack of respect for civil and political rights and that the guarantee of social and economic rights implies recognition of the right to development as a fundamental human right.
The Dakar Colloquium on Human Rights and Economic Development, held in September 1978, did reach a greater number of conclusions; some of them were more elaborate. The first of these relates to the development. Development was viewed as a right, whose essential content is the need for justice, in the national as well as international context. It was held to be both a collective and an individual right. As a second conclusion, the participants stated that human rights could not be reduced merely to political and civil rights, but also included economic, social and cultural rights. It is the recognition of the indivisibility and interdependence of human rights in Dakar in 1978 that African jurists turned a new corner in no longer being prepared to justify systematic human rights violations by the needs of economic and social development. Therefore, the participants finally recommended that a human rights convention shall be concluded at the pan-African level, that sub-regional human rights institutes should be set up to raise public awareness, and that one or more inter-African human rights commissions should be created composed of independent magistrates responsible for hearing all complaints relating to human rights violations.
What do you think is the role/significance of such NGOs in the process of conceptualization and codification of ACHPR? You may also make a reference to subsequent sections to reflect more, if any!!
- The Role of Inter-Governmental Organizations (UN & OAU)
When we talk about the role of governmental organizations in the process of development of African Charter, the contribution of UN and OAU attracts close attention. On the basis of two resolutions (GA Res. 926 (x) 4 ECOSOC Res. 605(XXIL) and the invitation of the Government of Senegal, the United Nations Secretary-General arranged a series of regional seminars in Dakar (Senegal) from 8 to 22 February) 1966 on human rights in the developing countries. The participants proceeded to examine the human rights situation in the developing countries and also to review the institutions and procedures for the promotion and protection and human rights in those countries. However, the emphasis on sovereignty and priority on the setting of the applicable law took away the success of this seminar. In 1967, the Nigerian delegation to the UN Commission on Human Rights initiated the possibility of creating regional commissions for the protection of human rights where there were none at present. Yet here again a consensus was reached that the regional human rights commissions could only be established on the direct and exclusive initiative of the states in the region concerned and could not be imposed on them from outside. The matter was again raised in Cairo (Egypt) seminar of the commission on Human Rights in 1969. The participants attending the seminar unanimously supported the establishment of an African Commission on Human Rights with mainly promotional mandates. Similar efforts continued in the beginning of 1970s with the involvement of UN and its specialized agencies.
While the initial seminars and debates focus on institutional mechanism for the promotion and protection of human rights in Africa, the later phase of the initiatives in the 1970s stressed the need for the adoption of an African Convention on human rights. To this end, it was stated that the instrument to be set up should not be a mere carbon copy of existing international conventions, but should be flexible and pragmatic and reflect African’s peculiar problems, of which economic underdevelopment was the most important. The last part of this sentence of itself summarizes the concerns of African leaders at the time and partly explains the OAU’s lack of commitment in this attempt to institutionalize the protection of human rights throughout the continent.
As per the resolution of the UN Commission Human Rights (March 1978) and its approval by the General Assembly (December 1978) on the regional arrangement for the promotion and protection of human rights, a seminar of African leaders took place in Monrovia (Liberia) from 10 to 21 September 1979 and drew up some proposals which were noteworthy for being concrete. The Monrovia Proposal placed emphasis on structural issues than rules, that is, laid the foundations for an African Commission on Human Rights by stipulating its membership, its organization, the applicable standards and, above all, functions.
Therefore, it was on the basis of the above series of efforts that the creation of African human rights regime assumes its last phase of success. These involved two levels of development, according to Ouguergouz- the technical phase in which independent experts played a preponderant role, and the diplomatic phase, in which different categories of government representatives in turn considered the draft convention prepared by experts and finally adopted it.
In the Summit of African leaders which took place at Monrovia in 1979, the leaders declared themselves conscious of the fact that a political regime which protects fundamental human rights is indispensable for mobilizing the creative initiatives of the African peoples for economic development. However, it was the invasion of Ugandan territory by Tanzanian troops which prompted the conference to concern itself seriously with the question of human rights in Africa. More importantly, it was in this resolution (Res. AHG/Doc. 115 (XVI) that the Summit invited the OAU Secretary-General to organize as soon as possible in an African capital a restricted meeting of highly qualified experts to prepare a preliminary draft ‘African Charter on Human and Peoples’ Rights’ providing, inter alia, for the establishment of bodies to promote and protect human and peoples’ rights. In some measure, this resolution fixes position of the African leaders regarding the serious events recently experienced in the continent. The meeting requested was convened four months later in Dakar from 28 November to 8 December 1979. Some twenty African experts were invited to attend this meeting, presided over by the Senegalese Judge Keba Mbaye.
The opening address by President Senghor of Senegal merits consideration in as much as it lays down the philosophy which was to guide the experts’ work. Having underlined the role played by the principle of sovereignty in the vicissitudes of the continent, he urged the experts to use their imagination and draw inspiration from African traditions, keeping in mind the values of civilization and the real needs of Africa. He then revealed what he meant by this. For him, the right to development deserved a particular place in that it embraces all economic, social and cultural rights as well as civil and political rights. And he unambiguously added that provision should also be made for a system of “duties of individual”, in harmony with the rights granted to the individual by the society to which he belongs. In conclusion, he recommended that, if the “Homo africanus” of tomorrow was to be fashioned, then it would again have to be a case of “assimilating without being assimilated” and of borrowing from modernity only that which was compatible with the deep nature of African civilization; in the area of human rights, irresponsibility and immorality should carefully be avoided.
The diplomatic process was set in motion by a first Ministerial Conference held at Banjul (Banjul I) from 19 to 15 June 1980 to consider the draft Charter adopted by the meeting of independent experts. During this meeting, the government delegates only managed to agree on its preamble and the first eleven Articles. In its second session held in Banjul (Banjul II) from 7 to 19 January 1981, the delegates finally adopted a text consisting of 68 Articles which, apart from certain modifications of style and substance, was the same as the draft prepared by the independent experts. This accelerated work of government delegates was attributable, according to Ouguergouz, to the two events surrounding the meeting: the assassination of the Liberian Leader, Dr. William Tolbert, the then president of OAU and the news of arrest of the delegates from Upper Volta shortly after attending the Banjul meeting.
The draft text was transmitted to the OAU Committee of Ministers, which considered it at its 37th session, held in Nairobi, Kenya, from 10 to 21 June 481. The Ministers were unable to agree on the document as finalized especially on the mandate of the African Commission on Human and Peoples’ Rights granted under Article 45 of the Draft Charter. Nevertheless, the document was submitted as it stood to the Summit Conference due to be held a few days later in the same city. It was therefore, in Nairobi, from 24 to 28 June 1981, at the 18th Assembly of OAU Heads of Sate and Government that the final phase of a process begun 20 years earlier was played out. Thirty one African leaders attended the Summit. A the conclusion of its meeting, the Gambian President, Dawda Jawara proposed the adoption of the final version of the African Charter. Then, the Summit with no debate or formal vote on any resolution, adopt the African Charter on Human and Peoples’ Rights (ACHPR).
The African Charter on Human and Peoples’ Rights, a product of the OAU, has been ratified by all African States and is the premier African human rights instrument. The charter in many ways reflects the norms which underlie international human rights law, but in some respects-notably peoples’ rights, the inclusion of socio-economic rights and the emphasis on the recognition of duties- the Charter is uniquely African. Therefore in what follows, the focus is mainly on the rights guaranteed and some unique features of African Charter.