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Sexual (gender) inequality is a global reality. Women as part of human being are entitled to benefits and protections under the general human rights instruments (both UN and regional) such as the equality and non-discrimination clauses, and other fundamental guarantees. However, the reality has been otherwise. Women have been subjected for long time to discrimination, denial of access to basic rights (education, health, property, employment etc), and victim of a wide range of discriminatory and harmful practices (domestic violence, early marriage, FGM, etc).
Women in the African context are even more exposed to differential treatment and a lot of disadvantages. It is stated that African public and private life have been and are dominated by men. Women’s participation in most walks of life has been undermined.
These are among the limited reasons which lead to the separated treatment of women’s rights and eventual adoption of separate documents. The two basic documents of paramount importance to women’s rights are the UN Convention on the Elimination of All forms of Discrimination against women (CEDAW) and the recently adopted African Protocol to the African Charter on Human and Peoples Rights on the Rights on the Rights of women in Africa (APRW). Thus, the purpose of this subsection is to highlight the importance and innovations of APRW in light of the global and preexisting African instruments (CEDAW).
Women’s Right under the OAU/AU Framework
There has been a repeated criticism that the OAU Charter and the ACHPR gave inadequate attention to women in Africa. The first does not contain any mention of gender, while the later raised women’s rights specifically under a single provision (Article 18). However, OAU Charter’s silence was later remedied by a series of resolutions and decisions addressing the promotion and protection of women’s rights in Africa. The most underlying factors behind such initiatives were said to be: the participation of the OAU in international conferences, the role and contribution of women in the African liberation struggle and to react to conflicts and economic development of the continent.
The central them of the decisions and resolutions of OAU on women’s matters throughout 1990s were on promotion, enhancement and empowerment of women’s participation at all levels of decision-making (international, regional, national and local). It was believed that it is only through the participation of women in every aspect of national and international affairs (Political, economic, social, etc) that a meaningful change can be brought. Of course, this position of the OAU was reflected in the recently adopted women’s Protocol. Moreover, the OAU Charter’s omission has been now remedied under the AU Constitutive Act by providing ‘promotion of gender equality’ as one of its guiding principles (CA, Art. 4(1)). In addition to this, the AU has adopted a ‘Solemn Declaration on Gender Equality in Africa’ on July 2004 which calls for the expansion of the gender parity principle to all AU organs, NEPAD, the RECs, and national parliaments.
African Protocol on the Rights of Women
The need to adopt women’s treaty law was called upon by NGOs working on women’s right which was based on concern about the pervasive abuse of women’s rights. The work was begun by appointing commissioners to coordinate and prepare women’s protocol. The role of African Commission on Human and Peoples Rights and the Gender Unit within the OAU was significant. The later prepared a draft OAU Convention on Harmful Traditional Practices (HTPs). However, the African Commission’s draft protocol and the HTPs draft conventions were later merged and adopted as the Draft Protocol to the African Charter on the Rights of Women in Africa (the Addis Ababa draft).
On “July” 2003, the AU Assembly adopted the protocol to the African Charter on the Rights of women in Africa which entered into force on 25 November 2005.
Women’s protocol, like that of African Children’s Charter, has introduced innovative norms and addressed the realities and problems of African women. Of course, it has also similarity with that of CEDAW provisions.
To assess the normative expansion brought about by the protocol, the pre-existing normative framework (‘the existing law’) has to be reviewed and contrasted with the protocol.
Though Article 18 of the ACHPR characterizes women as one of the groups deserving of protection, the special measures to be directed in protecting women and ensuring the elimination of discrimination against them are not delineated. Even if CEDAW was passed two years prior to the adoption of the African Charter, the fact is that the later was only minimally influenced by CEDAW’s provisions by incorporating only a single provision dealing with women’s rights.
Dear students, read article 18(3) of African Charter. Does it imply that all state parties to the African Charter have become bound to implement all the provisions of CEDAW?
The African Children’s Charter has also some link to women’s protocol as it provides for important rights of girl child, in particular the prohibition in children marrying under the age of 18.
Given the scope of protection under the above treaties, what then is the ‘added normative value’ of the protocol? Compared to CEDAW, the protocol speaks in a clear voice about issues of particular to African women and locates CEDAW in African reality.
The women’s protocol is the first treaty to place domestic violence, polygamy, HIV/AIDS, and medical abortion, in a binding human rights framework (Articles 4(2), 6(c), 14(1) (e), 14(2) k) respectively). It also provides in detail for the protection of women in armed conflict (Art. 11), and reiterates the need to accord women refugees protection under international law (Art. 4(2) (k)). The women’s protocol incorporates clear and expansive definitions of ‘discrimination against women’ (Art. 1(j), e.g. it includes economic harm), ‘harmful practices’ and ‘violence against women’. ‘Harmful practices’ such as female genital mutilation are specifically prohibited (Art.5).
The protocol provides specificity where vagueness prevailed, for example when it clarifies that ‘Positive African Values’ are those based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy (preamble). It also spells out the scope of socio-economic rights in greater detail than CEDAW, which limited some socio-economic rights to rural women (EDDAW, Art. 14), and goes beyond the scope of the rights provided for under the African Charter by spelling out the content of rights and by including the right to food security and adequate housing (Arts. 12,13,14,15 & 16).
A necessary implication of targeting violence against women and ‘unwanted or forced sex’ in the private sphere is that the protocol requires domestic violence legislation and the criminalization of ‘rape in marriage’. The precarious position of groups of women that have been rendered particularly vulnerable due to loss of a spouse, overlap with old age, disability, and poverty which also receive the protocol’s attention. (Arts. 20-24). The protocol once again reiterates the general stipulation of 18 years as the minimum age of marriage (Art. 6(b)).
Adopting a distinctly transformative stance, the protocol emphasizes ‘corrective’ and ‘specific positive’ (or ‘affirmative’) action. While CEDAW contains a generic provision allowing for ‘temporary special measures aimed at accelerating de facto equality between men and women’ (CEDAW, Art. 4(1)), the protocol reiterates the need for ‘positive’ measures by locating them in different contexts.
The protocol requires states to adopt measures that may favor women above men ‘such as electoral quotas for women in order to ensure substantive’ (‘in fact’) equality (Art. 9(11)). Positive action is also specifically required with regard to ‘discrimination in low’ (Art. 2(1) (d)), illiteracy, and education (Art. 12(2)).
Although the women’s protocol significantly advances standard-setting, it suffers from inelegant and unfortunate drafting deficiencies. The disproportionate effect of HIV and AIDS on women in Africa is not adequately reflected in the text. In any event, the right to be informed of one’s own and one’s partner’s HIV status is ambiguous and should not form the basis for the erosion of rights. The feminization of poverty, especially in rural Africa, is also not adequately reflected. As for its drafting, there is some inconsistency in the ‘rights-bearers’ in the protocol, with men sometimes specifically included in the scope of rights, and sometimes not. Similar to the instrument that it supplements, the African Charter, the women’s protocol does not have a provision on reservations. At the beginning of 2007, three states (Namibia, South Africa, and the Gambia) entered reservations upon ratification of the protocol. Thus, the benefits of these treaty provisions may be lost if reservations exclude the application of some of its important provisions. However, there are some hopes that even countries that entered reservations to CEDAW (e.g. Libya and Lesotho) did not enter similar reservations when ratifying the protocol. For lack of clarity, this area is expected to be elaborated by the enforcing organs on the basis of Vienna Convention on the Law of Treaties (1969).
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With some 44 percent of its population under the age of 15, the adage that ‘children are the future’ rings more true in Africa than anywhere else. The protection of children’s rights is not only an investment in the future, but also an imperative of the present, which is characterized by children’s exploitation as solder’s, laborers, and sex-workers, and in human trafficking; the neglect of orphans, especially due to AIDS deaths; the prevalence of street children; early marriages and other harmful cultural practices; and the disproportionate impact of conflict on children (UNICEF, ‘State of the world’s Children 2006: Excluded and Invisible’) what these challenges show us- the level of vulnerability and special difficulties facing children. To fight these, the UN has adopted various resolutions (the 1959 Declaration on the Rights of the Child) and an important binding instrument-Convention on the Rights of the Child of 1989. These are the instruments globally addressing the rights of Children. So what is the need of having regional (OAU/AU) child rights instruments?
The OAU/AU Child Rights Protection System
Children’s rights first featured on the OAU’s agenda in 1979, the UN-declared International Year of the Child, when the Assembly adopted the Declaration on the Rights and Welfare of the African Child. Although not legally binding, this Declaration provided a moral compass for later legal reforms. Among other measures, the Declaration urged states to adopt, ‘legal and educational measures’ to abolish cultural practices that are harmful to children, such as early marriage and female circumcision. In 1987 nearly a decade after the adoption of the Declaration, the works and initiatives for creating binding child rights instruments in the African context were began. Conferences involving African NGOs, UNICEF and African lawyers were conducted in 1988.
A working group of African experts set up by OAU, prepared a draft Charter which formed the basis of eventual African Children’s Charter. This was ultimately adopted as African Charter on the Rights and welfare of Children on 11 July 1990 and entered into force on 29 November 1999, almost a decade later. F. Viljoen identifies two reasons for the adoption of this document: Political and legal reasons. On a political level, the OAU reacted against a perception of exclusion or marginalization of African States in the drafting process of the CRC. Their involvement was initially limited. From political point of view, there was a need to adopt a regional human rights instrument dealing with the issue of particular interest and importance to children in Africa. It was contended that in the CRC as a global instrument and the product of numerous compromises, regional specificities were victimized in the process of universal consensus-seeking.
Thus, some of the omissions’ from the CRC and those not sufficiently addressed, identified by those involved in the drafting process of ACRWC, are the following: the situation of children living under apartheid, factors disadvantaging the female child, practices prevalent in African society such as FGM and circumcision, socio-economic conditions such as illiteracy and low level of sanitary conditions, the African conception of the Community’s responsibilities and duties, child soldiers and minimum age for military services, and the role of family in the upbringing of the child and in matters of adoption and fostering.
All these concerns were at least partly addressed by the ACRWC. Compared to the CRC, the African Children’s Charter (ACC) raises the level of children’s protections in three important respects. First, while the CRC allows child soldiers to be recruited and to be used in direct hostilities (CRC- Art. 38(2) (3)), the ACC completely outlaws the use of child solders (Art. 22(2)). Secondly, in terms of CRC, child marriage is allowed, because Article 1 stipulates that child means every human being below the age of 18 years unless majority is acquired at an earlier age. The ACC is explicit in its prohibition of child marriages (Art. 21(2)); in fact, it adds that the legislation must be adopted to specify the age of marriage to be 18 years. Thirdly, in its protection of child refugees, the ACC extends its ambit to internally displace children (IDC) (Art. 23(4)), something CRC does not do (Art. 22). The causes for internal displacement are also all-inclusive.
Therefore, it can be concluded that the ACC has fulfilled the objective of supplementing the CRC with regional specificities.
Another feature of ACC is that it deviates from CRC by placing duties or responsibilities on children (Article 31). This aspect may be identified as one of the African feature of ACC like that of the main Charter (ACHPR). This approach was taken by some as giving legal effect to the subordinate role of children within the strict age-based hierarchy of traditional African societies. However, it is expected that these duties will be interpreted in light of the whole charter’s provisions and that of international human rights laws (Art 46). Such other counterbalancing provisions of the ACC are the right to free expression and protection of privacy as well as parental duty to ensure the best interest of the child. Moreover, the inclusion of duties into ACRWC also emphasizes the relational character of children’s rights which is, to some extent, enjoyed in reliance on adult support and guidance. Thus, it remains for the monitoring Committee to clarity further the scope of the children’s duty-provision.
One of the prominent features of the main African Charter, peoples rights such as self-determination (Art. 20), is not reflected in the ACRWC. This could be possible because it is not appropriate to specifically entitle children to most collective rights or if the need arises children can invoke/claim rights under the main Charter as part of the phrase ‘every individual’ & ‘Peoples’ (whatever its meaning).
The ACRW enumerates a number of civil, political, economic, social and cultural rights in a holistic way. While most rights are recognized and guaranteed as in the general human rights instruments and that of CRC, there are some provisions uniquely designed to African reality. These include provisions on enjoyment of parental care and protection (Art. 19), protection against harmful social and cultural practices (Art. 21), rights during times of armed conflict which provide greater protection than the UNCRC (Art. 22); and rights of refugees (Art. 23). There are specific provisions in the Charter for ‘handicapped children’ (Art. 13) and those of imprisoned mothers (Art. 30).
Recently on 2 July, 2006, African Union has adopted another instrument partly dealing with children. This is known as African Youth Charter (AYC). With 15 minimum requirements, but so far with 11 ratifications, AYC has not yet entered into force. The content of the Charter addresses many matters of African youth in the political, economic, social and cultural scenarios. Do you think having such separate human rights instruments is necessary?
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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.
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KIWANUKA, RN (1988) 82 American Journal of international Law 80
… Human rights vs Peoples’
The full title of the Banjul Charter raises the controversial question of the difference and relationship between (individual) human rights and (collective) peoples’ rights. The relationship between the two must clearly be appreciated to avoid compromising either. In this connection, Roland Rich’s three-premise approach could be a particularly helpful starting point:
1) The individual remains the primary subject of international human rights law.
2) International human rights law recognizes the existence of groups.
3) The enjoyment of individual human rights requires certain human right to devolve directly upon groups.
The first is now generally accepted and does not require detailed examination. The individual is the cardinal subject of international human rights law. The second premise is rapidly becoming a well-settled principle, as international human rights law has already extended recognition to groups of persons as such. These include minorities, colonized peoples and indigenous populations. It is the third that requires a closer look, for it is the raison d’etre of collective rights.
Karel Vasak referred to collective rights, similar to those covered in the Banjul Charter, as belonging to the third generation of human rights and termed them ‘solidarity rights’. According to him, rights under this umbrella:
Seek to infuse the human dimension into areas where it has all too often been missing, having been left to the state or states … [T]hey are new in that they may both be invoked against the state and demanded of it; but above all … they can be realized only through the concerted efforts of all the actors on the social scene: the individual, the state, public and private bodies and the international community.
Here we can detect elements of peoples’ sovereignty, not only in the political, but in the economic sphere as well. In addition, and perhaps more importantly, Vasak emphasized the need for concerted action in the effort to deliver certain rights-hence the solidarity tag.
The basic question, however, remains: Are collective rights human rights or not? Part of the problem lies in the terminology itself. This evident, for example, in the following comment:
Can human rights, as opposed to obligations, be vested in states? ... [T]here is no precedent in international law for the vesting of human rights in states. Human rights are vested in the individual. Certain collective rights derive from those individual rights, especially from the right to freedom of association. But does that mean that these rights extend to states or Governments?
On the surface, it appears logical to state that a human right can only be enjoyed by a human being. Louis Sohn perhaps would respond to this observation by reminding us that because collective rights are always ultimately destined for individual, they are ipso facto human rights:
One of the main characteristics of humanity is that human beings are social creatures. Consequently, most individual belong to various units, groups, and communities; they are simultaneously members of such units as a family, religious community, social club, trade union, professional association, racial group, people, nation, and state. It is not surprising, therefore, that international law not only recognizes inalienable rights of individuals, but also recognizes certain collective rights that are exercised jointly by individuals grouped into larger communities, including peoples and nations. These rights are still human rights; the effective exercise of collective rights is a precondition to the exercise of other rights, political or economic or both. If a community is not free, most of its members are also deprived of many important rights.
The drafters of the 1966 international human Rights covenants adopted a similar position. That was why they included the collective right to self-determination in the covenants and gave it pride of place. This strong endorsement, however, did not convince detractors of collective rights. Therefore, I suggest that collective rights be regarded as sui generis. They are not individual, but collective; they belong to groups, communities or peoples. When the group secures the rights in question, then the benefits redound to its individual constituents and are distributed as individual human rights. This concept can be illustrated by taking professor Sohn’s example of the club further: in an interclub tennis tournament, only clubs have the right to participate even though individuals actually play the game. Members as skilled as Navratilova or Lendl would not have an automatic right to play in tournaments. Contestants are entered by their clubs in accordance with the internal arrangements of those clubs. The individual’s right to play can only be expressed in and through the club. This right is actualized, first, by protecting the club’s rights in the wider setting; and then by the individual rights in the club. International and individual rights are no different.
Consequently, the Banjul Charter, by separating peoples’ from human rights, does not obfuscate but progressively develops international human rights Law. It shows, in clear terms, that there is a conceptual difference between collective (peoples’) rights and individual (human) rights.
Furthermore, the Charter approaches the two categories in a balanced manner; it does not give the impression of favoring one category over the other. The fact that individual rights are not as well secured as one would have wished, is due not to a preference for collective rights but to the political realities of the continents and the OAU. Governments were not yet ready in 1981 to have their affairs completely opened to international scrutiny. Moreover, a close examination of the Charter reveals that, in most of the cases, peoples’ rights (as opposed to state rights) do not fare much better than individual rights. However, in its own way, the Banjul character at least theoretically recognizes that all classes of rights (political, economic, individual and collective) are equal and synergetic.
…
The meaning of ‘people’
The definition of ‘peoples’ has primarily been approached in the context of the right to self-determination, where it has been used to indicate an ethnic community or a community that identifies itself as such because of common interests. Yoram Dinstein, writing with Middle Easter problems in mind, identified subjective and objective quantities of term:
The objective element is that there has to exist an ethnic group linked by common history …
… It is not enough to have an ethnic link in the sense of past genealogy and history. It is essential to have a present ethos or state of mind. A people is both entitled and required to identify it self as such.
Ian Brownlie expanded on that definition but laid more emphasis on identity:
No doubt there has been continuing doubt over the definition of what is a ‘people’ for the purpose of applying the principle of self-determination. Nonetheless, the principle appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which it lives. The concept of distinct character depends on a number of criteria which may appear in combination. Race (or nationality) is one of more important of the relevant criteria, but the concept of race can only be expressed scientifically in terms of more specific features, in which matters of culture, Language, religious and group Psychology predominate.
…
In a report written for the United Nations, Aureliu Cristescu offered a limited definition of the term ‘people’ for the purposes of the right to self-determination. He preceded it by explaining that the United Nations had proceeded cautiously, albeit firmly, in the struggle against colonialism and it would not be possible to produce a definition covering all possible situations. From the specific situations already witnessed, he believed the following elements had emerged:
a) The term ‘people’ denotes a social entity possessing a clear identity and its own characteristics;
b) It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population;
c) A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the International Covenant on Civil and Political Rights.
Among these three writers, the main attributes of peoplehood are presented, namely commonality of interests, group identity, distinctiveness and a territorial link. It is clear, there fore, that ‘people’ could refer to a group of persons within a specific geographical entity.
…
Both these references are common, but that does not make their use unambiguous. Christescu’s exclusion of minorities depended on certain assumptions that, as we shall soon see, are no longer tenable.
‘people’ as possessors of the right to political self-determination
Under article 20 of the Banjul Charter, the right to self-determination is guaranteed to all peoples. However, paragraph 2 of article 20 singles out colonized and oppressed peoples as the possessors of that right. This is the least problematic of the uses of ‘people’. Under current international Law, as evidenced, for example, by the practice of the United Nations, the Organization of African Unity and individual states, political self-determination is generally equated with freedom from colonial-type rule. It does not extend to insistence by one sector of the population of an independent (or majority – ruled) state on its own form of self- determination, culminating, perhaps, in secession.
Following this line of reasoning, Eisuke Suzuki suggested that, in reality, there are only three remaining opportunities for the exercise of this right in Africa: The dismantling of minority rule in South Africa, the achievement of independence for Namibia and the resolution of the problem of the Western Sahara. International Law has chosen to deny such groups as the Eritreans the right (privilege?) of designating their struggle as one for the attainment of the right to self-determination.
…
International Law already treats the right to self –determination as tied to a specific geographically defined territory. Further subdivision would not be consistent with that position. Moreover, a people wishing to go its separate way would have to renounce the authority of the liberation movement representing it.
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From the foregoing, we can conclude that the first meaning of ‘people’ is all the different communities (peoples), in fact, all persons within the boundaries of a country or geographical entity that has yet to achieve independence or majority rule. Once independence (or majority rule) is achieved, no further independence is permissible. The rights of the different peoples would thereafter be protected as minority rights.
Before leaving this point, I should observe that the rule against secession as an exercise of the right to self-determination is only a general one. Although it is backed by a solid body of UN, AU and state practice, it can still admit a few exceptions. The independence of Bangladesh was one. Ved Nanda, in a definitive article on the subject, demonstrated the existence of a set of circumstances that combined to lend a clock of legitimacy to what would otherwise have been impermissible in international Law. These were the physical separation of East from West Pakistan and the total domination of the former by the latter; the nature of their ethnic and cultural differences; the disparity in their economic growth to the disadvantage of East Pakistan; the electoral mandate to secede; the brutal suppression of dissent in East Pakistan and the viability of both regions as separate entities. The fact that the United Nations was presented with a fait accompli was also significant.
Although many of the secession claims in various parts of Africa have been characterized some of the elements of the Bengali struggle, few have come close to matching it. For example: The secessionist activities in Katanga and Biafra were roundly condemned by the United Nations and the OAU as threats to sovereignty and territorial integrity. The conflict in Eritrea has practically been shoved into a closet despite Eritrea’s illegal absorption into the Ethiopia Empire in 1962. Finally, the unilateral declaration of independence by the Saharan Arab Democratic Republic (SADR), as well as its subsequent admission into the OAU in 1982, was not an exercise in secession. Moroccan and Mauritanian claims to the territory of Western Sahara had been rejected by the International Court of Justice.
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Peoples as the different minorities
One of these problems was to work out an acceptable definition of who constituted a minority. Several definitions were essayed with varying degrees of success. The most satisfactory and acceptable was the one proffered by Francesco Capotorti in a report commissioned by the UN Sub-Commission on prevention of discrimination and protection of Minorities. He suggested that:
A minority is a group numerically inferior to the reset of the population of a state, in a non-dominant position whose members – being nationals of the state-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or Language.
The pertinent question, for present purpose, is whether or not a minority, thus defined, can be referred to as a ‘people’ entitled to enjoy the peoples rights contained in the Banjul Charter. If we do not confine ourselves within the straitjacket of assuming that peoplehood and the right to self-determination automatically lead to independent statehood, it is not difficult to appreciate that, indeed, a minority can fulfill all the requirements of a ‘peoples’. As Felix Ermacora correctly argued:
Unless the United Nations has not developed clear-cut ideas about the holder of the right to self-determination my opinion is that minorities also can be considered as people. They must live also in a territory or they must have been living in a territory which is now occupied; they must have cultural or religious characteristics; they must be politically organized that so that they can be represented; and they must be capable of an economic independence. It does not depend on governments as to how they are describing an entity as a people; it depends on objective and subjective criteria of a group. It depends also on the self-consciousness of identify. I think therefore, that national and racial, perhaps also religious, minorities could be considered peoples in the sense of an autonomous concept of the United Nations instruments. For them self-determination is inalienable.
It must be emphasized that total independence is not the exclusive form in which the right to self-determination is realizable. What is important is that the right of the group and its members receive recognition and protection.
Since secession is generally impermissible in current international law, all references to political self-determination, in relation to independent states, should mean respect for minority rights. By the injunction of article 19 that ‘[n]othing shall justify the domination of a people by another’, the Banjul Charter proscribes external and internal forms of colonialism. Minorities are entitled not to lose their identity and interests in the aggression-of the whole
The right to existence in Article 20 addresses the problem of genocide perhaps the single worst threat to minorities. In other cases involving self-determination, a people within a state should be sufficiently protected by respect for both its minority rights (for example language, culture, religion) and the human rights of its members. That this protection may break down and that minorities everywhere, especially in the Third World, are constantly in fear of repression are actualities that cannot be assured an unequivocal collective solution by international Law. Such violations are regarded as violations of individual and minority rights and treated accordingly. The International Covenant on Civil and Political Rights of 1966 adopted a similar approach. In addition to individual rights and liberties, it made room for the protection of minority rights in article 27.
Where minority and individual rights arte respected, there will not be many motives for secession. The concept of ‘people’, in this sense, is designed to achieve that objective.
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In sum, the apparently progressive introduction of the concept of ‘peoples’ into the Benjul Charter could actually turn out to be counterproductive in some respects, that is, where the rights and interests of the people are not respected by the state. In such situations, peoples’ rights might initially be treated as state rights and then degenerate into sectarian, class, government, regime and clique rights. In the extreme, they could become certain individuals’ rights. This ultimate perversion has already come to pass in many Africa countries, such as Zaire, where the incumbents have unfettered control over the disposal of natural resources and state wealth. In situations of despotic misrule, one of the first casualties is usually the economy, as the governors embark on orgies of personal enrichment. The outrageous exploits of such dictators as Amin, Bokassa and Nguema are Legendary. Indeed, politics in Africa and the developing world generally, sometimes seems like a business venture.
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There is no necessary contradiction between the third meanings noted above, which equates ‘people’ with the state, as long as the state acts for the benefit of all the people, and professor Cassese’s view, which underlines the need for democracy in the economic realm. This third meaning refers to the external application of the right to economic self-determination. The state would control the commanding heights of the economy so as to minimize leakage and benefit the people, that is, all the peoples. Under present circumstances, however, to achieve this goal, it is imperative that the state sall be controlled by the people in the democratic sense. This is the message of the Algiers Declaration. It deals seriously with the relationship between peoples and their state in a way the Banjul Charter does not. This omission needs urgent correction otherwise the whole basis of peoples’ rights in the economic sense will hang in doubt.
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The Banjul Charter provides for a set of individual rights and liberties, which should complement and reinforce the right of peoples. However, the timorous approach to the protection of individual rights (or, indeed, any rights claimable against a state party) does not offer much hope for this meaning of peoples to be significantly asserted.
Provide the Commission is allowed to function effectively; it could redeem some of the grounds apparently conceded to states and governments. It will be in the interest of all African countries and their peoples for popular democracy to be given a chance. The lofty ideals of the peopls’ rights in the Banjul Charter-such as peace and development depend, in a large measure, on respect for individual. Peoples’ rights can not be a substitute for individual human rights.