The Distinctive Feature of the African Charter
The African Charter according to Davidson differs considerably from other regional counterparts, both in the catalogue of rights protected and in the means of implementation and protection. This is because it was drafted to take account of African culture and legal philosophy, and is specifically directed towards African needs which can be easily observed from the preamble. Ouguergouz, on the other hand, tells us a remarkable resemblance between the African Charter and the Universal Declaration. The preamble to the African Charter reaffirms the pledge of African states to promote international cooperation “having due regard to the Charter of the UN and the UDHR”. Both also incorporate the civil and political and that of socio-economic rights in the single instrument. Nonetheless, such approach was not followed in the same line in the subsequent binding UN human rights instruments [ICCPR & ICESCR). Therefore, the first area in which the African Charter differs from others is that not only does the Charter seek to protect individual civil and political rights, it also seeks to promote and protect within the single instrument, economic, social and cultural rights and a category of certain third generation rights. Close scrutiny of the African Charter shows us that both categories of rights are in dissociable from one another in both conception and universality [preamble, Para. 7].
The civil and political rights which are protected by Articles 2-15, comprise the traditional range of rights that are included in the ICCPR and the other regional instruments. One particular freedom that represents a particular African concerns is article 12, which prohibits the mass expulsion of non-nationals and is aimed at national, racial, ethnic or religious groups. This provision was included after the experience of a lot of events of mass expulsions in many African countries in the 1970s. Moreover, the African Charter alone lays down the principle of personal punishment [Art. 7 (2) and the right of all to equal access of all public property and services [Art. 13 (3).
The economic and social rights contained in the Charter also largely reflect the range of such rights in other international instruments. However, there are a number of additions which are worthy of note. The right to education, for example, in article 17, is supplemented by a duty upon the state whose obligation is to promote and protect the ‘morals and traditional African values recognized by the community.’ Article 18 of the Charter also reflects similar African concerns. Art 18 (3) also contains one of the most comprehensive clauses concerning the prohibition of discrimination against women by providing that ‘the state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.
The African Charter is the only regional human rights instrument to incorporate what are called third generation rights or ‘rights of solidarity.’ In protecting the right to self-determination, the Charter not only traverses the familiar ground of the UN covenants it also includes rights such as the right to economic, social and cultural development with due regard to their freedom and identify and in equal enjoyment of the common heritage of mankind [Art. 22]. The Charter also includes the right of peoples to national and international peace and security (Art. 23) and to a general satisfactory environment favourable to their development (Art. 24). Clearly, these rights impose obligations on states not only to order their internal affairs in such a way as to preserve to improve environmental factors, but they also require that they pursue particular forms of foreign policy calculated to achieve such and end. Therefore, by devoting six articles to the rights of the people in general, the African Charter thus seems to reflect a very special conception of human rights, according to which “the reality and respect of peoples’ rights should necessarily guarantee human rights.” We will come back with some more details on the scope and contents of the rights of peoples’ under the African Charter.
The African Charter is also known for its incorporation of the concept of individual duties. This concept was first included in the non-binding American Declaration of the Rights and Duties of Man of 1948 and to some extent under article 29 (1) of the UDHR. However, it is only in the African Charter that duties are imposed on individuals as a matter of international legal obligation. This begins with the preambular paragraph 6 which mentions that “the enjoyment of rights and freedoms also implies the performances of duties on the part of everyone. Though open to debates and criticisms, the reason for this is that the African sense of family and community places great emphasis upon the individual’s responsibility to both groups. Most of the rights contained in the Charter thus have a correlative duty attached to them.
Another distinguishing feature of the Charter relates to its shortcomings and imperfections vis-à-vis other human rights instruments. It is said that the substantive provisions of the African Charter are equivocally phrased or uses very general terms which may give rise to varying interpretations and avoidance of the obligations under the Charter. Moreover, extensive use is made of ‘claw back’ clauses that seem to make the enforcement of a right dependent on municipal laws or at the discretion of national authorities. Articles 8-13 all provide for enjoyment of rights within certain limitations such as ‘subject to law and order’ (Art. 8), ‘within the law’ (Art. 9 (2), provided that the individual abides by the law (Art. 10 (1) and Art. 11-13 continue in similar vein. However, the recent interpretation of the African Commission on such limitation clause in a communication against Nigeria (1993-96) is highly innovative in asserting the supremacy of international human rights.
Another distinguishing feature of ACHPR is the absence of provisions permitting derogation from (suspension of) the rights protected in exceptional circumstances. Is this event a simple oversight by the authors or a desire to unequivocally stress the fundamental nature of all rights guaranteed? According to one author, it is hard to imagine that the intention of the authors of the African Charter was to deprive the African states of any means of suspending the rights recognized. It would, therefore, have been more prudent to consider placing strict restrictions on this power and asserting, for example, the non-derogable nature of certain rights considered to be fundamental. The practice of African Commission on the same issue will be considered later on.
Last, but not least, when we come to the differences relating to international aspect, the African system is known for long absence of judicial safeguard, that is, unlike other regional systems, there has been no court system to settle disputes between states or to rule on individual grievances of human rights violations. The reason for this, according to one African jurist, is that Africans tend to focus on reconciliation and consensus as a means of setting disputes, rather than upon contentious procedures. One writer (Ouguergouz) adds nearly the same reason in that the promoters of a mechanism for safeguarding human rights and freedoms in Africa were therefore duty bound not to totally ignore the rule of the principle of sovereignty and its direct corollary, the predilection of African States for political settlement of their disputes. Therefore, the preference to African conception of dispute settlement based on negotiation and conciliation rather than an adversarial or confrontational system and the widespread reluctance among OAU member states to subordinate themselves to supranational judicial organ were the reasons for long absence of judicial mechanisms. Nevertheless, the long waited judicial system has recently put in place by an additional protocol to ACHPR which established the African Court of Human and Peoples Rights.