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.

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 37^th 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 18^th 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.      

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.

Historical Development of Human Rights

International law traditionally governs the relations between sovereign states and has therefore, not been considered responsible for regulating the relations between states and their citizens or those among citizens. The latter are part of the individual states sovereignty and, as such, are governed by national law (constitutional, administrative, penal and civil law). It is only since the Second World War, especially in reaction to the atrocities of National Socialism, that international law has come to regulate the rights of individuals in relation to their governments although many states still refuse to surrender their traditional part of their national sovereignty to international law. That is why the development of the international protection of human rights is an ongoing battle against national sovereignty.

Up until the Second World War, international law was not responsible for the rights of individuals unless the interests of more than one state were concerned. This was true in particular in the case of foreigners for whom the state they are citizens of, has protection power vis-à-vis the state that exercises defacto power.

The protection of minorities is a further historical antecedent of international human rights protection, which is also closely related to the protection power of national states. Ethnic, linguistic and religious minorities traditionally developed as new borders were drawn between states in the aftermath of wars. The protection of minorities is also closely linked to the peoples' right of self determination. In the case of the former colonies of the Axis powers, the right of self determination supported by the League of Nations mandates system and the United Nations trusteeship system, eventually led to their independence.

In addition to bringing an end to the First World War and introducing provisions for the protection of minorities, the Peace Treaty of  Versailles also created two international organizations which proved to be important for the development of protection of human rights: the League of Nations as predecessor of the United Nations, and the International Labour Office as predecessor of the International Labour Organization, which today is one of the most effective specialized agencies of the United Nations for the protection of economic, social and cultural rights today.

We will finalize the discussion of this section by discussing the International Bill of Human Rights which has been described as a milestone in the history of human rights, a veritable Magna Carta marking mankind’s' arrival at a vitally important phase: the conscious acquisition of human dignity and worth . Since its inception, the United Nations has strived to secure the promotion and protection of human rights worldwide. The first, and possibly the singularly most important, step taken by the United Nations in furtherance of the incumbent obligation to promote respect for human rights and fundamental freedoms was the General Assembly's adoption on 10 December 1948, of the Universal Declaration of Human Rights. Although not technically binding, the effect of the Universal Declaration has far surpassed the expectations of the drafters and it is widely accepted as the consensus of global opinion on fundamental rights. The original intention that it would be followed swiftly by a binding enforceable tabulation of rights was not to be realized; it was to be eighteen years before consensus was reached on the text of the International Covenants and a further ten years before the instruments attracted sufficient ratifications to enter in to force.

The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and two Optional Protocols annexed there to and the International Covenant on Economic, Social and Cultural Rights. It has been referred to by the United Nations as the ethical and legal basis for all the human rights work of the United Nations, the foundation up on which the international system for the protection and promotion of human rights has been developed.

Before and after the adoption of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, the United Nations and its specialized agencies helped to formulate a number of other multilateral treaties which sought to implement specific rights or groups of related rights. These supplement the protection afforded by the covenants and several of them contain implementation procedures of their own. Among the human rights treaties elaborated by, or under the auspices of, the United Nations are:

a)    The Convention on the Prevention and Punishment of the Crime of Genocide

b)   Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.

c)    Convention Relating to the Status of Refugee as Amended by the Protocol of 1966.

d)   Convention on the Political Rights of Women.

e)    Convention Relating to the Status of Stateless Persons.

f)     Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

g)    Convention on the Nationality of Married Women.

h)   Convention on the Reduction of Statelessness.

i)     Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.

j)     International Convention on the Elimination of All forms of Racial Discrimination.

k)   Convention on the Non Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

l)     International Convention on the Suppression and Punishment of the Crime of Apartheid

m)  Convention on the Elimination of all forms of Discrimination against Women.

n)   Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

• o)    International Convention against Apartheid in Sports.

p)   Convention on the Rights of the Child.

q)    International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families

In addition to these international human rights developments, there are also others which grew up as body of regional human rights law. This regional development will be discussed in section

The United Nations Human Rights System

The human rights provisions of the United Nations Charter have been described as scattered, terse, and cryptic. No comprehensive system for protecting human rights was enshrined in the charter. Rather, the goal of securing respect for human rights was specified with state pledging to encourage the promotion and observance of rights with in their territories. There was no real definition or articulation of human rights although reference was made to the concept of equality and the notion of the dignity and worth of the human person. It is unlikely that the drafters of the original Charter could have foreseen the development of international human rights law to its present form based on the Charter’s references.

From the outset, the United Nations has placed great emphasis on the promotion of economic and social progress and development of all states. This has positive repercussions for international human rights, including political and economic stability, conditions more conducive to the realization of human rights.

The failure of national laws to protect citizens had been cruelly demonstrated, the responsibility thus lay with the global community, the new United Nations Organization. As the League of Nations had failed in its attempts to protect minorities from the states in which they find themselves, the new organization sought to approach the question of human rights from a different angle adopting the concept of equality for all in place of the idea of protection of minorities. The new organization was anxious to avoid the problems associated with minorities which has beset its predecessor, ultimately leading to its collapse. The United Nations system is based on a fundamental and irrevocable belief in the dignity and worth of each and every individual. Realization of this should ipso facto obviate the need for minority protection; every individual is entitled to the same fundamental rights and freedoms.

Having pledged to promote universal observance of and respect for human rights, the United Nations required an institutional framework to exercise responsibility thereof. Accordingly, Chapter IX of the Charter, International Economic and Social Cooperation, elaborates on the economic and social foundations of peace. Article 55 of the Charter aims at creating conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self determination of peoples … in furtherance thereof, the Charter then lists economic and social aims which the United Nations shall promote without distinction as to race sex, language or religion (Art 53(31)). Article 61 of the Charter created the Economic and Social Council. One of the functions of this body is making recommendations for the purpose of promoting respect for, and observance of , human rights and fundamental freedoms for all (Art 62/21) . To assist in this task, Economic and Social Council was to establish a commission for the protection of human rights. This commission has been supplemented by a number of other bodies.  Today there is a comprehensive body of institutions, organs and committees which over see the implementation and realization of human rights at the international level. Six Committees, created by the principal human rights treaties, monitor the implementation of each treaty. These treaty monitoring bodies are the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of the Child. These Committees work with and report through the Economic and Social Council and the General Assembly of the United Nations.

This new international organization very quickly established itself as a body which would actively fulfill its commitment under Article 55 of the Charter, promoting universal respect for, and observance of, human rights and fundamental freedoms. Progress in this area has been achieved in a number of ways: drafting Conventions and resolutions; applying political pressure to states; preparing and disseminating relevant information; and internationally condemning serious human rights violations.

Introduction to Regional human rights systems with particular reference to Africa

Parallel with the United Nations human rights systems, regional human rights systems have developed. In this section we are going to see these regional human rights developments.

There are three main regional systems that aim to protect and promote human rights: the Council of Europe; the Organization of American States, and the African Union. Of these, Europe has the oldest and most developed system with an established judicial mechanism for determining complaints brought by individuals. Like the United Nations, the Council of Europe was founded in the turbulent period after the cessation of hostilities in the Second World War.

Human rights were high on the agenda of the new organization. The founding states drew up a convention on human rights and fundamental freedoms which was opened for signature on 4 November 1950, entering in to force in September 1953. All member states of the Council have signed and ratified it. The drafters sought to provide a mechanism for realizing civil and political rights and freedoms as proclaimed in the Universal Declaration of Human Rights.

The European Convention on the Protection of Human Rights and Fundamental Freedoms is the prime instrument on human rights with in Europe. The rights enshrined therein are essentially drawn from the first half of the Universal Declaration. They are the right to life, freedom from torture and other inhuman , or degrading treatment or punishment, freedom from slavery and forced or compulsory labour, right to liberty and security of person, right to a fair trial, prohibition on retroactive penal legislation, right to private and family life, home and correspondence, freedom of thought, conscience and religion, freedom of expression, freedom of association and assembly, right to marry and found a family , right to an effective remedy for a violation of the rights and freedom from discrimination in respect of the specific rights and freedoms. With a focus primary on civil and political rights, the Convention did not greatly expand the Universal Declaration. It did provide considerably more detail on many of the rights and, of course, it articulated a binding legal framework to ensure the realization of those rights.

When we come to the American system, the Americans host one major regional organization with a significant impact on human rights- the Organization of American States. The Organization of American States (OAS) was established in 1948 at the ninth inter American Conference (Bogota, Colombia).

The Bogota Conference adopted the American Declaration on Rights and Duties of Man. This Declaration is similar to the Universal Declaration of Human Rights. The rights included encompass civil and political (life, liberty, religious freedom, inviolability of home and correspondence, fair trial) as well as economic, social, and cultural rights (benefit of culture, leisure time, work, social security). However, it also sets out a number of duties incumbent up on the American citizens. The duties are varied ranging from civil and military service through the support, education, and protection of minor children to a duty to pay taxes.

The American Convention on Human Rights was signed in 1969 and entered in to force in 1978. The Convention restricts itself to a detailed tabulation of civil and political rights. Economic social and cultural rights are covered in a single Article (Art. 26) which cross refers to the charter of the OAS as amended by the Protocol of Buenos Aires. On this matter, it should be noted that in 1988, the OAS adopted an additional protocol in the area of Economic, Social and Cultural Rights. The Convention itself establishes the machinery to be employed in protecting the rights of all Americans. The OAS has also expanded the scope of its human rights protection with a number of further conventions.

Now let’s focus on the African system. The youngest developed regional system is to be found in Africa. The African Union, formerly the Organization of African Unity (OAU) has played a prominent role in developing an African jurisprudence on human rights. The African system is in some ways considerably less developed than its American and European counterparts yet perhaps its greatest success lies on its very existence. It is the youngest system of the fully fledged (i.e. monitored and implemented) regional systems for the protection and promotion of human rights. Human rights were not the sole priority when the Charter was drafted although the OAU Charter provides that the constituent states will coordinate and intensify their collaboration and efforts to achieve a better life for the peoples of Africa. The OAU Charter also stipulates that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples, acknowledging both the United Nations Charter and the Universal Declaration of Human rights in passing (Art II (1) (el).

In 1981, the OAU adopted the African Charter Human and People's Rights. It was designed to reflect African concepts of rights and thus is distinctive in its phraseology and underlying rationale. In 1998, a protocol to the charter was agreed - the Protocol on the Establishment of an African Court on Human and Peoples Rights.

The Charter (often referred to as the Banjul Charter) entered in to force in 1986. It enshrines the African concept of rights and aims to be accessible to African philosophy: it is striking among international and regional instruments in its emphasis on human and peoples' rights and its cataloguing of the duties the individual /group to the state. A further notable feature is that, unlike other international and regional instruments, states are not permitted to derogate from the articles of the Charter. The rights and duties thus apply during times of public emergency.

In addition to the Banjul Charter, the African system has also adopted other human rights instrument. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) is one of these. With civil unrest, authoritarian rule, inter- faction fighting and natural disasters common place in African Society, there is a frequent displacement of peoples, whether to avoid hostilities or escape famine. Refugees are a major problem in some areas. It is thus perhaps inevitable that Africa should read the way in drafting an instrument aimed solely at regulating refugees. Many of the provisions in the convention reflect those of the United Nations Convention Relating to the Status of Refugees (1951).

The African Charter on the Rights and Welfare of the Child (1950) is the other instrument. This instrument entered in to force in 1999. In many respects, it reflects the scope and popularity of the United Nations Convention on the Rights of the Child. It recognizes that children in Africa need special support and assistance. 'The situation of most African children  remains critical due to the unique factors of their socio -economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts , exploitation and hunger.’’ (Preamble). The rights of children are considered to impose duties on every one. Many of the provisions are similar to those included in the United Nation Convention, though in Africa the rights extend to all those below the age of eighteen without exception.

A draft Protocol on Women's Rights has been adopted by the Commission on Human Rights. The draft seeks to respond to the Beijing principles (UN) and plan of action. The Protocol, if and when adopted, will most probably be part of the existing human rights machinery.

Before concluding our discussion on the African human rights system it is important to briefly discuss the institutional framework. The African Commission on Human and Peoples' Rights, a body of eleven independent experts, was created in 1987. The functions of the Commission include the promotion of human rights through collecting documents, undertaking studies on African problems in the field of human and peoples' rights, dissemination of information, organization of symposia, formulation of principles and rules aimed at solving legal problems relating to rights and freedoms, and cooperating with other African and international institutions concerned with the promotion and protection of human and peoples' rights, the protection of human rights in accordance with the Charter, and the interpretation of the Charter (Art 45) .

The other important institution is the African Court on Human and People's Rights. The Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights (1997) seeks to create a court which will complement and reinforce the work of the Commission in furtherance of the protection of human and people's rights as enshrined in the Charter (preamble).