The African Charter broke new grounds by enacting duties in a more elaborated and meaningful fashion than any other binding human rights instrument. The duty provisions of the African Charter aimed at the individual are found in articles 27 to 29. According to Article 27:
- Every individual shall have towards his family and society, the state and other legally recognized communities and the international community.
- The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.
Article 28 states that: “every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”
Article 29 provides that the individual shall have the duty:
- to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need;
- To serve his national community by placing his physical and intellectual abilities at its service;
- Not to compromise the security of the state whose national or resident he is;
- To preserve and strengthen social and national solidarity, particularly when the latter is threatened;
- To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law;
- To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
- To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-beings of society;
- To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.
The duty posture of the African Charter as enumerated above has been subjected to criticism. The critics are concerned with that it would be a basis for state parties to the African Charter to perpetrate human rights violations. This view is driven by the gross and persistent violations of human rights in post-colonial African states and the fear that vesting states with more power can only result in more abuses. To dismiss these criticisms in the face of present day African realities would not be proper. It will only amount to a denial of a potently genuine fear. On the other hand, however, the inclusion of duties in the Charter will not per se be an automatic avenue for states to engage indiscriminate human rights violation. The duties in the Charter, which the individual is charged to observe are not of the nature that could be tied to a particular right, which a state would in turn use as a retaliatory tool. The notion of duties in the Charter is rather another unique dimension of the African Charter in entrenching positive African cultural and traditional values which existed in pre-colonial Africa, and which complement the notion of rights. If viewed from this angle, critics of the language of duties in the Charter may be persuaded to do a deeper study of the implications of the duties.
The duty-rights conception of the African Charter could provide a new basis for individual identification with compatriots, the community, and the state. It could forge and instill a national consciousness and acts as a glue to reunite individuals and different nations within the modern state, and at the same time set the proper limits of conduct by state officials. The duties enshrined in the Charter could be read as intended to recreate the bonds of the pre-colonial era among individuals and between individuals and states.
Looking at the Charter provisions on duties, one would see that they are meaningful for the smooth working of society. Article 27(1) merely restates the fact that the individual owes a duty to his family, the state, other legally recognized communities and the international community. Article 27 (2) places a limitation on the exercise of rights by an individual for the protection of the rights of others, and in the interest of collective security, morality and the interest of others. This is a normal fact of life, which reflects the practical reality that no right is absolute. Individuals are asked to reflect on how the exercise of their rights in certain circumstances might adversely affect the rights of other individuals or the community at large. The duty is based on the presumption that the full development of individual rights is only possible where individuals care about how their actions would impact others. Article 27(2) thus raises the level of care owed to neighbors and the community. The same philosophy is embedded in Article 28. The duty of every person to respect and consider his or her fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance, is noting but a lubricant that oils the wheel of social interaction.
The duties set out in Article 29 stress responsibilities to the family, community and the state. There is nothing wrong for an individual to be reminded that he or she ought to respect his or her parents and to provide them with necessary care and maintenance. This is positive African cultural value, which has been codified for posterity. It is the joy of the African parent to toil and train his or her child, with a great expectation that when that child becomes “somebody” that child would take care of him or her. In the same vein, a person ought to serve his or her community with his or her intellectual and physical capabilities. That is the essence of community service, and it has been a long standing practice in the African past.
The same thing could be said of the duties not to compromise the security of the state, to strengthen social and national solidarity, especially when national solidarity is threatened, and the duty to preserve, strengthen and defend the national independence and territorial integrity of a person’s country. This group of duties reminds Africans of the need to preserve their hard-won independence. The duties represent an extension of the principle of self-determination in the external sense, as a shield against foreign domination. The maintenance of social and national solidarity for example, is of utmost importance in present day Africa where many modern states have collapsed or failed. The duty to pay tax is the civic responsibility of every citizen of any country, where the principle of taxation is recognized. The duties to promote positive African culture and African unity are emphases of societal cohesion.
We must also observe that the notation of duty is not just one that is directed against the individual. The Charter prescribes duties to states in addition to the general obligations that apply to them. The state is under a duty to assist the family (Article 18 (2). Article 25 imposes a duty on states to promote and ensure through teaching, education, publication, the respect of the rights and freedoms contained in the Charter and to see that these freedoms and rights as well as corresponding obligation and duties are understood. Similarly, Article 26 creates a duty for states to guarantee the independence of the courts. The difference between the duties of individuals under the Charter and those of states is that, while those of the individuals cannot ordinarily be used to proceed against them under the regional mechanism, those of states amount also to obligation within the charter, over which they can be challenged.
The notion of duties under the African Charter, while not totally without concern as to possible misuse by the political class, whether in military uniform or civilian garb, needs to be evaluated in a different light. It is noting but an embodiment of the positive dimension of African cultural philosophy, which the Charter tries to codify for the benefit of posterity. Any thinking to the contrary by the ruling class must be resisted.
Claw-Back Clauses under the African Charter
The phrase “claw-back clauses” has been used to generally refer to those provisions of the African Charter that tend to limit some of the rights guaranteed under the Charter. They do not qualify as outright derogation clauses that are found in other international human rights instruments. They rather qualify the enjoyment of the right as contingent upon other notions of state prescription. For example, Article 8 grants the freedom of conscience, profession and free practice of religion, “subject to law and order”. Under Article 10, an individual has the right to free association “provided that he abides by the law”. Similarly freedom of movement of an individual is guaranteed by Article 12 “provided he abides by the law”. Citizens have the right to participate freely in their governments “in accordance with the provision of the law.” Article 14 provides for the right to property, but that property may be encroached upon “in accordance with the provision of appropriate law”.
These clauses have been criticized, based on the fact that states are traditionally the most frequent violators of human rights. They also have the power to create and change laws. By inserting clauses that permit rights to be limited by the law, the Charter makes human rights especially vulnerable to the very institution which attacks them most often. The criticism goes further to assert that claw-back clauses in the Charter go further than derogation clauses in that they permit a state, in its almost unbounded discretion, to restrict its treaty obligation or the rights guaranteed by the Charter. Though derogation clauses, on the other hand, permit suspension of treaty obligations, such suspension is temporary, while that based on claw-back clauses may be permanent. In the same vein, derogations can only be invoked in cases of emergency, unlike claw-back clauses which may be applied in normal circumstances, so long as a national law is passed to that effect. Gittleman opines that while derogation clauses warrant the suspension of only certain obligation and rights, rather than all rights, claw-back clauses have no limit.
One will agree with the observation that the effect of claw-back clauses as expressed in the African Charter is that it seriously emasculates the effectiveness of the Charter as well as its uniform application by Member States. This is because instead of the Charter having primacy, the various national laws of Member States actually assume a primary place. The effectiveness of the Charter will thus be reduced, since it would appear to be subject to national standards as laid down by domestic law. Such domestic laws could be laws that are made to validate acts of violation deliberately embarked upon by Member States. Various Africa governments are known for the use of retroactive legislation to achieve their dictatorial tendencies, and will thus find the claw-back clauses a veritable source of inspiration. One must agree that claw-back clauses in the Charter, if not properly construed, will frustrate the enjoyment of some of the rights guaranteed in the Charter. This is because, permitting national law to limit, with a superseding effect, provision of the Charter, means that the Charter itself permits the perpetration of violations of rights enshrined in it. In other words, the Charter gives rights, but permits them to be taken away, thus not protecting the individuals it is meant to protect.
The Commission needs to make a categorical statement, either by way of a resolution or a finding in the course of its adjudicatory function, on the purport of the claw-back clauses scattered all over various articles of the Charter. The common phrases “subject to law”, “in accordance with the law”, etc used in claw-back clauses, need interpretation.