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- Category: African Human Rights Law
One unique aspect of the African Charter is its inclusion of group, collective or peoples’ rights as distinct rights in addition to civil and political rights and economic, social and cultural rights. The notion of peoples’ rights seems controversial, and raises a number of questions in the minds of international human rights scholars. Such questions include: what point is Africa trying to make? What is the definition of “people”? Does it mean that the rights of the individual have become subordinated to peoples’ rights?
In trying to answer the questions above in the context of African human rights concept, some African scholars have canvassed African traditional way of living in which communal relationship is emphasized. According to one view, “living in Africa means abandoning the right to be an individual, particular, competitive, selfish, aggressive, conquering being . . . in order to be with others, in peace and harmony with the living and dead, with the natural environmental and the spirits that people it or give life to it.” The predominant sentiment apparent in the above statement is that in Africa, the individual is totally taken over by the archetype of the totem, the common ancestor or the protective genius, and merges into the group. There is no doubt that the diverse cultures of Africa significantly identify group influence over the individual. The statement of the African Charter, however, goes further than this group identity. By providing for group rights, the Charter does not subordinate individual rights to group rights, neither does it remove the individual from being the subject of the human rights concept. What the Charter tries to do is to establish a link between the inalienable rights of the human person and of peoples in a contextual manner.
The contextual approach to human rights raises the issue of safeguarding, promoting and preserving universal rights and human values in societies with different political, social and cultural backgrounds. It touches upon the question of recognizing the very identity of diverse cultures, civilizations and peoples with due respect for fundamental and universal values of humanity. Similarly, the following preambular paragraph of the African Charter reinforces the relationship between peoples’ rights and human rights: “Recognizing, on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection, and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights.” Second, peoples’ or groups rights are not in conflict or in competition with human rights, as they are complementary concepts.
Some aspects of the notion of collective rights enshrined in the African Charter are strongly amplified by the U.N. Declaration on the Right to Development. Such endorsement of the principle of collective rights is indicative of their importance rather than their destructive tendencies. While it may be true that recent experiences and actual practices in different parts of the world have revealed what happens when a misconceived concept is misinterpreted and vehemently enforced, the concept of collective rights cannot be said to be fraught with such dangers as apartheid, or such others concepts that degrade the status of the human person. Van Boven rightly points out that the principle of the right to development, for example, is a notion of peoples’ right that is not destructive of individual human rights, but one that places peoples’ rights and human rights in mutual relationship as complementary concepts.
One does not contend the fact that there is no generally accepted definition of people, neither does the African Charter offer one. However, there is consensus among jurists that some working characteristics of “peoples” have emerged from studies made under the auspices of UNESCO. Such characteristics, among others, include:
- An enjoyment by a group of individuals of some or all the following common features:
(i) Common historical tradition;
(ii) Ethnic group identity;
(iii) Cultural homogeneity;
(iv) Linguistic unity;
(v) Religious or ideological affinity;
(vi) Territorial connection;
(viii) Common economic life.
2. The group on a whole must have the will to be identified as a people or the consciousness of being a people.
By choosing to create legal obligations out of peoples’ rights, the point that Africa is trying to make is that, just like other leading instruments, such as the American Declaration of Independence, the French Declaration of the Rights of Man and of the Citizen, the Universal Declaration of Human Rights, the African Charter is more than a legal instrument. It is also an instrument of liberation; and embodies human aspirations and goals, reflecting constitutive elements of justice. According to van Boven, this is more so, because the struggles for human rights and peoples rights are not only settled in the courts, but also and perhaps more decisively in political fora. Thus, instruments on human rights and peoples rights may function in an extra-legal dimension as a guarantee and as mechanisms to defend freedom. Particularly in the third world, they also serve as tools of the liberation for the deprived, the oppressed, the have-nots and victims of discrimination.
Peoples’ rights under the Charter span from Article 19 to 24. Article 19 guarantees the equality of all peoples and prohibits the domination of a people by another. Article 20 provides for the right of all peoples to self-determination. Article 21 guarantees the right of all peoples to freely dispose of their wealth and natural resources and to exercise several related rights. Article 22 deals with the right to development, while Article 23 deals with national and international peace and security. Finally article 24 guarantees the rights of all peoples to a satisfactory environment favorable to their development. Though the scope of each rights and the beneficiaries under each categories of the rights are broad and some times debatable, we will briefly discuss the basic feature of some of them.
- The Right of Self-determination
The right of self determination is conceptually provided for in Article 19 of the Charter, while specifically enumerated in Article 20. Article 19 provides that “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.”
Article 20 reads as follows:
- All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social; development according to the policy they have freely chosen.
- Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination of resorting to any means recognized by the international community.
- All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
The above Charter provision on the right of self-determination underscores the colonial experience and domination of Africa with a view of eliminating all vestiges of colonialism. The fact, however, that the Charter is a document enacted in post-independent Africa leaves one to wonder on the perceived application of the concept in the future. While Article 20 (2) and (3) reinforce opposition to all forms of colonialism, Articles 19 and 20 (1) are general guarantees against domination of any kind of peoples. Article 20 (2) not only emancipates colonized people, but also “oppressed peoples.” As has been rightly observed, the above provisions have left commentators wondering whether the principle of self-determination of “peoples” would apply to groups within sovereign African States who may wish to secede as was the experience in Biafra, Western Sahara, Katanga and Eritrea.
The African struggle for decolonization was essentially a struggle for the right of self- determination of African people to freely determine their political status and freely pursue their economic, social and cultural development. With the attainment of de jure independence of African States the quest for self-determination became reinforced as experiences in the above cited examples have shown. African States have individually, and under the auspices of the OAU, taken the position that self-determination does not apply outside the colonial context, because such post-colonial application of the concept will undermine African unity. The International Court of Justice (ICJ) in a case between Burkina Faso and Mali has endorsed this theory of African unity as a basis for not applying the principle of self-determination to groups within post-colonial Africa. The ICJ stated that
“the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by the peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice.”
There is no disputing the fact that African unity is indispensable to African development and would be the preferred option of all well meaning Africans. However, events all over African have shown that the domination experienced during colonialism, on basis of which Africa fought for independence, still pervades the continent. Eritrea, Rwanda, Western Sahara, Katanga, Anglophone Cameroon and post-Biafra domination in Nigeria are glaring examples. Some of these cases have shown that there are certain exigent circumstances where the principle of self-determination should be allowed to apply rather than a preference for the human carnage that went on (and still goes on) in most of these examples.
The African Commission is yet to find its bearing on the challenges posed by several of these collective rights. The Commission’s position on the right of self-determination is not different from the views expressed by African States on the issue. The first test case on self-determination that came before the Commission was Katangese peoples’ Congress v. Zaire. In that case, the people of Katanga submitted a communication under the auspices of Katangese Peoples’ Congress in 1992 requesting the African Commission to recognize the Katangese Peoples’ Congress as a liberation movement entitled to support in the achievement of independence for Katanga; recognize the independence of Katanga; and help secure the expulsion of Zaire from Katanga. The complaint alleged that the history of the Katangese people showed that its territory is separate from Zaire. The communication, therefore, called on the Commission to find that the people of Katanga were entitled to an independent and separate State.
In its deliberations on the communication, the African Commission identified Article 20 (1) of the African Charter as the applicable provision, as there were no allegations of specific breaches of other human rights. The Commission agreed that all peoples have a right to self-determination, but that there may be a controversy as to the definition of the peoples and the content of the right. The Commission identified that the issue in the case was not self-determination for all Zaireans as a people but specifically for the Katangese, but that whether the Katangese consisted of one or more ethnic groups was, for that purpose immaterial, and that no evidence to that effect had been adduced.
The Commission agreed that self-determination may be exercised in a number of ways, such as independence, self-government, federalism, confederalism, unitarism or any other from of relations that accords with the wishes of the people, but that it must be fully cognizant of other recognized principles, such as sovereignty and territorial integrity. The Commission vehemently maintained that it was obliged to uphold the sovereignty and territorial integrity of Zaire as a member of the OAU and a party to the African Charter. It ruled that in the absence of a concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question, and in the absence of evidence that the people of Katanga were denied the right to participate in government as guaranteed by Article 13 (1) of the African Charter, Katanga was obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire. For the above reasons, the Commission declared that the case held no evidence of violations of any rights under the African Charter; and that the request for independence, therefore, had no merit under the African Charter on Human and Peoples Rights.
It is clearly evident from this case that the African Commission does not intend to interpret the right of self-determination as long as there is the right to participate in the government of one’s country under Article 13 (1) of the Charter. Any other claim would appear to a majority of members of the Commission to be a threat to the territorial and sovereign integrity of an African State.
In view of the above decision, scholars may continue to wonder without end, the actual purport of Article 20 of the Charter. Interpreting the Article to apply only to foreign domination is contradictory of the clear language of the Article. The second and third paragraphs of the Article specifically identify colonized peoples, and to that extent could be said to apply to foreign domination. Paragraph 2 on the other hand, does not only identify colonized people, but also oppressed people. Oppressed people could well be within sovereign African states. In addition, paragraph 1 applies to all peoples, without specific reference to colonized people or foreign domination. In this regard, there is growing consensus that the right of self- determination is not limited to freedom from colonial domination, but extends also to contemporary post-colonial realities.
Be the above as it may, one would agree that there is a need for cautious application of the absolute principle of self-determination in view of the territorial and sovereignty issues at stake. Rather than dismiss every claim of the right to self-determination, the implementing machinery of the African system should adopt strict standards on the right, which would ensure that frivolous claims are not allowed to demean its procedure. The African Human Rights Commission ought to be open-minded enough to consider genuine complaints by genuinely oppressed groups within sovereign African states.
- Right over Wealth and Natural Resources (Art.21)
Article 21 provides:
- All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
- In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as an adequate compensation.
- The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
- States Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.
- States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation, particularly that practiced by international monopolies, so as to enable their peoples to fully benefit from the advantages derived from national resources.
The right over wealth and natural resources is a component right of self-determination, and has been so regarded since the adoption of the UN Resolution on Permanent Sovereignty Over Natural Resources. One could say that the drafters of the African Charter were inspired by the above resolution. In the 1952 resolution, the General Assembly recognized “that the under-developed countries have the right to determine freely the use of their natural resources . . . in order to be in a better position to further the realization of their plans of economic development in accordance with their national interests . . . .” This principle was one of the early marks of decolonization. During this period, developing countries asserted sovereignty over their natural resources during their struggle for political self-determination and economic development. They argued that sovereignty over natural resources was an essential prerequisite for economic independence and development, and therefore a cardinal component of State sovereignty. Today, the principle has become established as “a fundamental principle of contemporary international law.
A close reading of Article 21 of the Charter reveals that “peoples” and States are guaranteed this right to their wealth and natural resources. While it is the right of all peoples freely to use, exploit, and dispose of their natural wealth and resources, states have the right to exercise control over their natural wealth and resources, and in such a way that will eliminate the excesses of multinational corporations. This interpretation brings back the argument already made in the previous discussion on the right of self determination as to whether “peoples” here could be extended to groups within sovereign African States. It has been observed that the doctrine of permanent sovereignty arose in the context of relations between host States and transnational enterprises engaged in the exploitation of natural resources. As a result, the right of the State to legislate for the public good with respect to the natural resources and economic activities in its territory has become the most common construction given to the doctrine of permanent sovereignty.
The African Commission is yet to decide a case that borders directly on article 21 of the Charter. Some of the cases dealing with violation of personal freedom may have arisen from circumstances that could be construed as having their root in that provision. It is hoped that, when the commission or other adjudicative body gets the opportunity, it will take into consideration the reality of the times. The process of economic reforms that will follow in African countries in the millennium will definitely lead to legal reforms that ought to take into consideration the notion of the rights of people (groups within sovereign states) to enjoy the wealth and natural resources on their land, subject to reasonable state control. To be considered also, is the role of multinational corporations in state violation of human rights based on the exploitation of natural resources and similar activities.
- The Right to Economic, Social and Cultural Development (Art.22)
Article 22 of the African charter provides that:
1.all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind; and 2. State shall have duty, individually and collectively, to ensure the exercise of the right to development.
The right to development has acquired the status of an internationally recognized right since the early eighties. The right has grown as a branch of international law. Keba M’Baye, the first president of the Supreme Court of Senegal and a judge of the International Court of Justice, is credited with first formulating the right to development as a human right in the early seventies during the 1972 Strasbourg Inaugural Lecture in which he elaborated upon the economic, legal, moral and political justifications for the existence of the right to development. The emerging recognition of the right was confirmed by the United Nations General Assembly Declaration on the Right to Development in 1986. This Declaration followed the adoption of the right to development by the general assembly as a human right in 1979.
As is normal in international law, the right to development has been a controversial subject, provoking lengthy debates as to its existence. For proponents of the right like M’Baye, there can be no human rights without development and vice versa. It is further argued that there is higher propensity to violate human rights in underdeveloped countries than in developed ones, thus drawing a correlation between positive protection of human rights to a higher level of economic development. In the other side of the coin, the argument is that the right to development is a mere expression of sentiments devoid of any legal validity.
The right to development has already come to stay as a human right, and therefore has to be developed, albeit progressively, to serve the general purpose of development. Generally, the right to development consists of the right of individuals to benefit from a development policy based on material and non material needs and to participate in the development policy. It also involves the collective right of a developing country to the establishment of a new international order. The general interpretation to be given to this dimensional approach is that in the end, the human being is viewed as the subject and not the object of the development process. On a practical level, there is a natural translation of the right to development into the right of communities, especially those of indigenous peoples, to develop their culture and maintain possession of their land and cultural resources in the face of economic development policies that threaten their extinction.
There is no doubt that the concept is quite controversial and its precise definition extremely complex. However, it is clear that the notion of solidarity, or international cooperation and shared responsibility for the welfare and prosperity of all, is the central basis for the realization of this new right. To this end, the Charter implies a progressive obligation of member states to ensure that while individual freedom is emphasized, economic, social and cultural development will be promoted.
The African commission has not had a chance to decide any petition on the right to development.
- The Right to Peace (Art.23)
On the right to peace, article 23 of the Charter states:
1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of Africa Unity shall govern relations between states.
2. For the purpose of strengthening peace, solidarity and friendly relations, states parties to the present Charter shall ensure that:
(a) Any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against the country of origin or any other state party to the present Charter.
(b) Their territories shall not be used as bases for subversive or terrorist activities against the people of any other state party to the present charter.
Article 23 (1) restates the principle of the preservation of international peace and security, as well as the principle of friendly relations among states, which the UN Charter provides for as some of its main objectives, and which also forms a basic foundation of the OAU. Apart from the restatement of the principle of international peace and security, the paragraph also makes it the rights of all peoples. Similarly Article 23 (2) prescribes two specific ways by which states parties would ensure peace and strengthen solidarity and friendly relations.
The question of peace as a human right, into which some obligations can also be read, is entirely novel, and began with the African Charter. Generally, the law of peace is part of the classical subdivision of the subject matter of international law. Thus, the principle of peaceful coexistence, peaceful change, and prohibition of coexistence, peaceful change, and prohibition of coercion – all find expression in a variety of national and international legal instruments. Apart from the provisions of Article 1 of the UN Charter, the right to peace has been the subject of debates and study by the UN Commission on Human Rights. These debaters culminated in UN General Assembly Resolution, which reaffirmed the right of individuals, states and all mankind to a life in peace.
According to Alston, despite the significant of the above instrument on the right to peace, the elements of the right have never been determined, and that, no effort has yet been undertaken to elevate the term beyond the level of generalities, or to allow it to develop into practical usefulness. While this observation may be correct, in terms of the practical realization of the right to peace, we must recognize the efforts at the UN level to define and develop the content and elements of the right. For practical purposes, however, it is difficult to see how Article 23 (1) of the African Charter can be properly articulated in terms of enforcing the right of all peoples to national and international peace and security. It is true that in Africa, peace and security have become increasingly of grave concern. The Charter does not contain enough contents to aid the enforcement of the right. The two situations in which states are obliged to ensure the achievement of peace, solidarity and friendly relations are not adequate. They limit the whole question of peace to ensuring that an asylee does not engage in subversive activities against his or her own country, or any other state party to the Charter; and provide a prohibition of the use of the territory of a Member State for subversive or terrorists activities. While these are inherent in the whole agenda of peace, they serve the notion of state sovereignty and non-intervention in the internal affairs of a member state of the OAU, which has been a long standing principle of the regional body, but which has stood in the way of human rights enforcement.
The African commission has not yet had a chance to consider a communication based on Article 23 of the Charter. The Commission has, however, adopted a number of resolutions on situation in Africa that threatened peace and security in various Member States and the continent at large. By the nature of Article 23, it would appear that states are in a better position to enforce a violation of the right than individuals, through the inter-state communications procedure.
The principle that the right to peace, and the right to live in peace, entail more than the obligation of states not to engage in aggressive war, is already firmly established international law. There are other possible extensions of the right to peace which involve related rights, duties and obligations, many of which are already implied in existing rights and guarantees. For example, the right of all peoples to participate in the decisions of their government regarding war and peace is implicit in recognized rights of political participation. Furthermore, the right of conscientious objection is already contained in the guarantee of freedom of thought and conscience.
The Right to Environment (Art.24)
Article 24 of the Charter provides that
all peoples shall have the right to a general satisfactory environment favorable to their development.
The first international large scale formulation of concern for the environment in a right- related posture was at Stockholm in 1972. Since then several efforts have been made to achieve international recognition for a clean and healthy environment. After more than two decades, the Stockholm conference was followed by the Rio Declaration. At the time of the Stockholm Declaration, environmental action was understood to be principally a matter of preventing pollution; and in developing countries was seen as a luxury to be afforded only after industrialization. As environmental issues became increasingly stressed, several national constitutions began to incorporate the right to the environment.
The concept of a healthy environmental is therefore, not new. However, the link between a healthy environment and human rights is a recent development. It has been observed that the suggestion to link human rights and the environment was made by Rene Cassin, who opined that human rights protection should be extended to include “the right to a healthful and decent environment, that is, freedom from pollution, and the corresponding right to pure air and water.” It was, however, the African Charter that gave the right to a healthy environment its international codification in a human rights instrument.
What exactly does the right to a general satisfactory environment as formulated in Article 24 of the African Charter mean? Ankuma has criticized the provision as vague, and thus subject to divergent interpretations. She, however, notes that the broad formulation of states’ obligations leaves room for flexibility, in such a way that it may be possible for states to adhere to their human rights obligations in accordance with their particular situation. There is no doubt that the manner in which the right to environment is formulated in the African Charter does not guarantee a definite interpretation in terms of the contents of the right. This may, however, be a blessing in disguise, if any interpretation to be given to the right takes cognizance of the realities of the situation in accordance with prevailing international law principles. In addition, the right to environment by nature cuts across civil and political rights and economic, social and cultural rights. It is said to have the characteristics of civil and political rights in so far as it requires states to refrain from activities that are harmful to environment, while on the other hand, it has a feature of economic, social and cultural rights in that it requires states to adopt measures to promote conservation and improvement of the environment. In all, the right to environment has different dimensions. The individual dimension is the right of any victim or potential victim of an environmentally damaging activity to obtain reparation for harm suffered, while the collective dimension involves the duty of the state to assist in cooperating internationally to resolve environmental problems.
The Africa Commission has not yet been given the opportunity to deal with Article 24 of the Charter as no complaints have been submitted, which allege the violation of satisfactory environment per se, neither has the commission taken any independent initiative to promote the right. Despite the lack of action on this right at the Commission, it is increasingly becoming important and relevant to Africa, especially after the toxic waste dumping of 1988 in some African countries by international corporations. After the discovery of the toxic waste dumps, the OAU took quick action to forestall future occurrences. The same year the OAU Council of Ministers passed a resolution condemning the export of toxic wastes to Africa, and emphasizing that it is a crime against Africa. This resolution was followed by an OAU Convention banning the importation of toxic waste into Africa. In addition, the African Economic Community Treaty concluded in Abuja, Nigeria on 3 June 1998 requires states parties to improve the environment and take steps against the dumping of toxic wastes.
It follows, therefore, that in interpreting the obligations enshrined in Article 24 of the African Charter, the primary responsibility lies with states parties to adopt measures that will effectively address environmental degradation. The right of the individual against the state is contingent upon the existence or otherwise of these measures, and where a demand for such measures results not in assistance but in the violation of other fundamental human rights of the individual. Individuals, in addition, should have the right in domestic law of private action against a direct violator of his or her right to a healthy environment.
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AGBAKWA, SC ‘RECLAIMING HUMANITY: (2002) 5 Yale Human Rights and Development Law Journal 177
A point very often missed in human rights praxis is that economic, social and cultural rights (ESC) ‘are the only means of self-defense for millions of impoverished and marginalized individuals and groups all over the world’. Despite the international rhetoric on the equal relevance, interdependence, and indivisibility of all human rights, in practice states have paid less attention to the enforcement and implementation of ESC, and their attendant impact on the quality of life and human dignity of the citizenry, than other rights. African states, still living with the nightmares of slavery and colonial exploitation, are perhaps unsurpassed in this dreamy, rhetorical exercise.
African states ought to take the lead in enforcement of ESCR, given African’s deplorable socio-economic conditions. They ought not to emulate the industrialized states of the North which can afford the luxury of hollow rhetoric in the implementation of ESCR. Regrettably, African states have so far failed to match their words with appropriate, sufficient action. Where African leaders have asserted the importance of satisfying ESCR as part of protecting other rights, some have done so with the intention of using this rhetoric as a ploy to suppress civil and political rights.
Africa’s worsening socio-economic conditions, and resulting exacerbation of civil and political strife coupled with the current lack of interest in the enforcement of ESCR, renders the effective realization of human rights on the continent a remote possibility. Even if largely unintended, the neglect of ESCR, a substantial part of an indivisible whole, has brought about this sad state of affairs. This article contends that there is an urgent need for a change of attitude and a relocation of emphasis from neglect and discriminatory enforcement of human rights to respect and balanced, holistic enforcement. Given the prevailing socio-economic circumstances in Africa, ESCR remain the cardinal means of self-defense available to the majority of Africans.
. . .
In the 1993 Vienna Declaration, the consensus opinion recognized the futility inherent in entrenching civil and political rights without the corresponding ESCR. This consensus emerged despite the bipolar (East-West) ideological differences, which then dominated international relations, and led to the implementation of the Universal Declaration of Human Rights (UDHR) by means of two international covenants, and continue to have grave implications for ESCR. Long before the Vienna Declaration, the UDHR set the parameters for evaluating the legitimacy of governmental actions by codifying ‘the hopes of the oppressed, [and] supplying authoritative language to the semantics of their claims’. The euphoric ‘Never Again’ declaration by the victorious powers after World War II was intended to encapsulate humanity’s resolve to banish human misery in all its ramifications, whether arising from physical abuse or from want.
If the purpose of government is provide for the welfare and security of all citizens, governments fail to fulfill this purpose when they commit to enforcing only civil and political rights. Such an ostrich-like posture denies the various forms of state abuse against which the citizen must be protected: Above all, the state’s neglect of its citizens. Even opponents of enforceable ESCR recognize this axiom. The de facto commitments of many Western states to a welfare ethos, despite, despite their official opposition to ESCR, assures a high degree of compliance in protecting the rights of their citizens.
Modern governments are active participants, not passive spectators, in events that fundamentally impact the ability of the people to lead a meaningful and dignified life. Governance ceases to be meaningful when the majority of the people is put in a situation where it cannot appreciate the value of life, let alone enjoy its benefits, and where it lacks the appropriate mechanisms to compel change. Where human survival needs frequently go unmet, as in Africa, protection of human rights ought to focus on ‘preventing governments from neglecting their citizens’.
A point that is often overlooked in contemporary human rights discourse and practice is that the greatest benefit of guaranteeing enforceable rights is the assurance it gives to people that effective mechanisms for adjudicating violations or threatened violations of their rights are available. As events in many parts of Africa have shown, the absence of such as gives the impression that resort to extra-legal means, such as armed rebellion, is the only way to improve one’s condition or challenge governmental abuse and neglect. Most current African conflicts consist of people who are fighting not against themselves but against poverty and governmental inaction in the face of destitution. This conflict usually is due to many years of impoverishing neglect and to the absence of other viable ways of compelling meaningful change. Because governments are increasingly expected to meet the basic needs of their citizens, there is growing tendency to demand results in militant terms, particularly in the absence of a proper forum to compel governmental action. As Callisto Madavo, World Bank Vice President for the African region, observes, ‘Africa’s wars are not driven . . . by ethnic differences. As elsewhere, they reflect poverty, lack of jobs and education, rich natural resources that tempt and the sustain rebels and [ineffective and insensitive] political systems . . .’
These are, for the most part, socio-economic and political conflicts among ethnically differentiated peoples. Although holistic protection of all rights will not prevent every conflict, it will defuse the majority of conflicts that are triggered or sustained by those who exploit abject socio-economic conditions. Scholars have demonstrated a casual link between these conflicts, which can be seen as a people’s violent resistance to their deplorable socio-economic conditions, and the absence of perceived modes of effecting a peaceful change.
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This relationship between deprivation and conflict underscores the fundamental link between protection of human rights and stability. The intimate relation between stability and human rights, in turn, reinforces the necessity of guaranteeing the enforcement of all human rights without exception. Since the different rights are interconnected and operate in support of each other, it logically follows that the full realization of one set remains dependent on the realization of the other. In a state of instability resulting from the denial of basic ESCR, it becomes difficult, if not impossible, to realize civil and political rights, and vice versa.
Apart from the instability it causes, the non-realization of ESCR creates insurmountable obstacles to the enjoyment of civil and political rights. People can only be free from abuse and exploitation when they have what it takes to assert their rights and free themselves from exploitative rule. Because the majority of Africans are illiterate and poor, they lack the requisite knowledge and means to assert their rights, let alone enjoy them. As UO Umozurike observes:
A great impediment to the attainment of civil and political rights is constituted by illiteracy, ignorance and poverty. To the many rural dwellers in any African state, and indeed to the urban poor, the lack of awareness or means make it impossible for them to assert their rights. They are very much at the mercy of their rulers.
Thus, even a society interested in protecting only civil and political rights should give equal priority to ESCR as a practical means to achieving the former. An absence of the latter commitment deepens a collective feeling of injustice. The majority, comprised of the more vulnerable members of society, cannot but feel that it has been denied an accepted forum for the recognition and redress of injustices. Moreover, the non-enforcement of ESCR ridicules the so-called autonomy of the individual, a concept that is the linchpin of civil and political rights. Adequate socio-economic conditions must exist as a precondition to personal autonomy.
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African states have not failed to recognize the dangers of selective- as opposed to holistic- recognition of human dignity. The African Charter remains a testament to the collective recognition of the indivisibility of human rights and dignity. As parties to the Charter, African states apparently appreciate the necessity of a holistic approach to enforcement. While this must be pursued at the international and regional levels-as the African Charter seeks to do-the locus of active enforcement must be the domestic arena where the mechanisms of enforcement will be within easy reach of aggrieved citizens and thus more widely utilized. Moreover, international protection or mechanisms are designed to complement the domestic protection of human rights.
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Anything short of a holistic enforcement of human rights at the domestic level belies the African Charter’s recognition that ‘the satisfaction of economic, social and cultural rights is guarantees for the enjoyment of civil and political rights’.
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The excuse of impossibility of performance due to underdevelopment, often put forward by African leaders and some scholars, does not represent the whole truth. It is too often a rationalization for lack of political will and the continued elevation of luxury over necessity.
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The Economic, Social and Cultural Rights
Unlike other international and regional human rights instruments, the African Charter spearheaded the holistic approach to human rights by including civil and political rights and economic, social cultural rights in a single human rights document. In addition, the preamble to the Charter clearly demonstrates stipulating that it was essential to pay particular attention to the right to development, and civil and political rights cannot be dissociated from economic, social and cultural rights. In fact, the Charter sees the satisfaction of economic, social and cultural rights as constituting the guarantee of civil and political rights (preamble, Para. 7). However, unlike other instruments, the Charter contains no express guarantees of the right to social security, food, adequate standard of living or housing, or prohibition of forced labour.
What is the status of implementation of socio-economic and cultural rights? Read Article 2!
- The Right to work in Equitable and Satisfactory Conditions (Articles 15)
Article 15 provides:
Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work.
Read Articles 6-9 of ICCPR! What shortcomings you notice in the African Charter? As you can see from this provision, African Charter leaves out a lot of guarantees and details adequately set out under ICCPR.
Article 15 of the African Charter does not per se task state parties to provide work for every person. It rather presumes a situation where there is or will be work to do, and lays down obligations of state parties in such situations. On the other hand, it obligates states to adopt measures and programs that will not only lead to job creation, but also ensure a conducive work environment. Though not expressly stated in the Charter the concept of right to work under equitable and satisfactory conditions generally implies fair and equal wages, the right to promotion where appropriate, the right to follow one’s vocation and to change employment, reasonable work hours, right to paid vacation (leisure and rest) and the likes. The interpretation of Article 15 should necessarily include these guarantees internationally recognized. Do you agree?
The other deficiency in the Charter is the non-recognition of trade union rights as relating to the right to work. So what will be the place of this right? Can we say that it can be invoked under the freedom of association and assembly provisions? The African Commission has elaborated in one of its Guidelines for the Submission of State Reports (1988). Under the Guidelines, “states are obliged to provide information on laws, regulations and court decisions that are designated to promote, regulate or safeguard trade union rights . . . of course, the relevance of ILO Conventions in this area should also be considered.
The African Commission has had few instances to rule on the right under consideration. In its decision on a communication alleging violations of the Charter by Angola on the occasion of the expulsion of nationals of western African countries, the commission stated, that this type of expulsion “calls into question a whole series of rights recognized and guaranteed in the Charter, such as the right [. . .] to work”. In another case concerning the imprisonment of one Cameroon’s magistrate and the refusal of reinstatement after being released, the Commission found violation of article 15. Because, it had prevented him from working as a magistrate even though others condemned in similar circumstances had been reinstated.
- The Right to Health (Article 16)
Article 16 of ACHPR on the right to health states:
(1) Every person shall have the right to enjoy the best attainable state of physical and mental health, and
(2) States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
According to the above provision, what is the right recognized and the undertaking assumed by the states (obligation of means or result)? Compare with Article 12 of ICESCR!
Expecting any state to directly provide for the medical cost of every person within its territory would be unimaginable even if that state enjoys a rich economy. The provisions of Article 16 speak to health care rather than health as a concept of well-being of every individual. A state can not guarantee the physical and mental well-being of every individual. But a state can and should provide a conducive atmosphere that would enhance the enjoyment of good health care than undermine it. States must adopt measures in the field or primary health care and a comprehensive program of universal immunization against infectious diseases plus the prevention and treatment of endemic, occupational and other diseases. Article 12 (2) of ICESCR, would be a good guideline for the precise objectives to the measures the state must take. In addition, states have to undertake educational programs on the prevention and treatment of health problems.
However, the approach of the African Commission to the right to health is violation-oriented, that is with out inquiry into claim of financial inability. On allegations of mismanagement of public finances and the failure of the government of Zaire to provide basic services and shortage of medicines, the Commission found that “the failure of the government to provide basic services such as safe drinking water and electricity and the shortage of medicines” constitutes a violation of Article 16 [communication 100/93]. The Commission also found Nigeria in violating the right when it prevented detainees under its custody access to medical care [Com. 152/96].
- The Right to Education [Article 17]
Article 17 of the African Charter states:
(1) Ever individual shall have the right to education
(2) Every individual may freely take part in the cultural life of his community.
(3) The promotion and protection and protection of moral sand traditional values recognized by the community shall be the duty of the state.
What do you get from the above provision? Is the right to education adequately addressed under African Charter compared to Articles 13, 14 and 15 of the ICESCR?
The right to education has become of great importance in international human rights law to proponents of both generations of rights. Under European Convention, it is treated as a civil and political right [Article 2, First Protocol to the European Convention]. Under the Inter-American Human Rights mechanism, it is one of the economic, social and cultural rights treated as hybrid rights, which are subject to the individual complaint procedure contained in Article 44 of the American Convention [Article 13 of Protocol of San Salvador).
ICESCR and other regional instruments contain elaborate provisions on the extent of the right to education. Article 17 of the African Charter lacks specificity on the contents of the rights such as compulsory nature of primary education, freedom of choice of parents, freedom to establish private educational institutions, protection of intellectual property and so on. The African Commission has identified some contents of the rights in its Guidelines for the Submission of State Reports. The Guidelines show that the right to education comprises the right to primary education, the right to secondary education, the right to post-secondary education, the right to fundamental education, the right to choice of schools, and the principle of free and compulsory education for all. However, still the contents of the above enumerated rights need to be understood in light of universally accepted standards such as under ICESCR. Nmehielle says that the African Commission will have to consider still such broader issues in the right to education as the right to receive education, the right to choice of education and the right to teach. The right to choice of education includes the right that allows parents to make inputs to the kind of education they think is best for their children. Thus, it will be through the choice of education that one may freely take part in the cultural life of his or her community, with a view to promote and protect the moral and traditional values recognized by the community.
The right to teach raises some questions as: Is a teacher limited to a set-out curriculum? To what extent can a teacher go outside the prescribed curriculum to impart knowledge? These questions bring out issues of freedom of expression, freedom of conscience, academic freedom, and to a relative extent, the right to work. Teachers may not go outside or below the prescribed standards, but there should be enough flexibility to allow them to use their expertise to the maximum benefit of all. The right to education under the Charter should be read to include the freedom of individuals and entitles to establish and direct educational institutions in accordance with the provisions of national legislation on education that establish minimum curricular requirements and other standards.
Oguergouz criticizes article 17 of African Charter in that it does not impose a precise obligation on the state i.e. the individuals have no any claim against the state. Do you agree with him? When we come to the case law, the African Commission ruled, in the communication against Zaire, that the closures of universities and secondary schools constituted a violation of Article 17. It also reached at similar finding in the mass expulsion of nationals of western Africa by the Angolan Government. From a number of communications against Mauritania, the Commission in one case stressed the importance of linguistic freedom in the following terms:
Language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.
- Protection of the Family and Other Vulnerable Groups (Arts.18)
What do you think is the distinguishing feature and drawbacks, if any, of this article?
Article 18 of the African Charter uniquely guarantees protection for five different subjects: the family, women, the child, the aged and the disabled. Thus, the provision covers the broader concept of family and those vulnerable groups. This feature of the Charter also contrasts to Articles 10 and 11 of ICESCR and 23 and 24 of ICCPR.
Article 18 (1) & (2), while underscoring the importance of the family as the basic unit of the society, place obligations on state parties not only to protect it and take care of its physical and moral health, but also to assist family members in fulfilling their duties. In addition to the obligations and duty of state to the family, Article 27 (1) and 29 (1) recognize individual duties to the family. Nevertheless, the Charter does not specify exactly what this state duty consists of in order to protect and assist the family [For your comparison see Art. 11 of ICESCR). In affording protection to the family, the state must not only create a legislative framework which will allow the family to develop to its maximum potential, but must also work actively to create societal conditions in which families might flourish. , can you refer to article 15 of the Additional Protocol to the American Convention on Human Rights, for itemized matters of state obligation vis-à-vis family?
One last point, but not least, to be mentioned in relation to rights of family is that the Charter does not contain any provision on the right of every person to marry or establish family.
Third paragraph of Article 18 obligates states to ensure the elimination of every form of discrimination against women and to also ensure the protection of the rights of women and child as stipulated in international declarations and conventions. There are some criticisms that the African Charter grants inadequate protection to the rights of women by inserting one subparagraph under the family provision. Of course, this was anomalous given that it is the continent hosting widespread violation of women’s’ rights from different angles and by different causes. But some say that the Charter has provided wide coverage by making a cross-reference to international declarations and conventions. Articles 60 and 61 of the Charter have also legitimatized resort by way of interpretation. Whatever, the arguments may be, African states have expressed their serious commitment by adopting a separate Protocol to ACHPR on the Rights of women in Africa. We will briefly address OAU/AU initiative in the protection of women’s’ rights in the upcoming unit.
The second part of Article 18 (3) ensures the protection of the rights of the child as stipulated in international declarations and conventions. Similarly the protection of the rights of the child is made to be pursuant to instruments outside the African Charter. These may include: UN Declarations on the Right to Child (1959), UDHR (Art. 16), ICCPR, ICESCR, CRC (1989), OAU Charter on the Rights and welfare of the Child (1990), ILO Conventions and so on. We will discuss some of the basics of child rights instruments in the next chapter.
Article 18 (4) of the Charter stipulates that the aged and the disabled shall have the right to special measures of protection in keeping with their physical or moral condition. This is a very sensitive area of human rights, especially in African where disabled persons for instance, have not been known to be given adequate protection against discrimination, nor opportunities and measures that take their situation into consideration.
Coming to the few case laws of the African Commission (esp. on family), in the aforementioned case of deportation by the Angolan Government, the Commission stressed that “by deporting the victims, thus, separating some of them from their families, the Defendant state has violated and violates the letter of this text [Article 18 (1)].
In connection with another communication alleging, among other things, the illegality of the expulsion by the Zambian Government of two political figures, William Steven Banda and John Luson Chinula, the Commission held that:
by forcing Banda and Chinula to live a stateless persons under degrading conditions, the government of Zambia has deprived them of their family and is depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being, thereby violating Article 5 and Article 18 (1) (2).
Economic, Social and Cultural Rights
Poverty poses major threats to human rights in Africa. Not surprisingly; socio-economic rights play a central role in current discussion about human rights in Africa.
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The Civil and Political Rights in African Charter
The African Charter on Human and Peoples’ Rights guarantees virtually all the established civil and political rights referred to by Karel Vasak as “the first generation of rights’.
Generational classification of rights must not be understood to mean that the earlier generation of rights falls into disuse giving place to a later generation, but that the earlier ones were recognized first, in point of time, before the later ones. The first generation rights are so firmly established and for so long that no serious government can claim to be unwilling or unable to enforce them. They incorporate the primordial rights of man and in the main, require governments to abstain from undue interference with them.
Behind some more exotic features of the African Charter, for instance peoples “rights and individual duties, lie the more ‘traditional’ civil and political rights which constitute the daily staple of regional, and in deed domestic, human rights mechanisms. It is also important to see that the lion’s share of the works of African Commission is devoted to the area of civil and political rights. This is not because the civil and political rights are more important than socio-economic rights. Rather civil and political rights do lend themselves more easily to supranational enforcement: their content is more clearly defined and demands of their remedies involve less infringement on the cherished concept of state sovereignty than socio-economic or peoples’ rights.
It is difficult to draw a hard and fast distinction between these two categories of rights. The only essentially political rights are those which enable an individual to participate in the exercise of political power and to gain access to public office in a country. As a rule these rights are enjoyed solely by nationals. Only the rights set out in the first two paragraphs of Article 13 of the Charter should therefore be included in this category. Other, purely civil rights are, nevertheless, also closely involved in the effective exercise of political rights. These include the rights to freedom of conscience, expression, assembly and association. Hence, a classification of the rights of the individual based on their civil or political nature can but be arbitrary. Therefore, with this caution in mind, we would rather prefer to discuss the scope and nature of specific rights generally recognized and guaranteed under this category. However, you should also be aware that this material will not go to the in depth analysis of the nature and scope of each rights recognized in the Charter for pragmatic reasons.
- The Right to Life and Integrity of Person (Article 4)
This is the first substantive right guaranteed in the Charter. Article 4 provides that:
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of is person. No one may be arbitrarily deprived of this right.
All international instruments emphasize the fundamental nature of the right to life, and its preeminence among other rights. The right to life has been observed to be characterized not only by the fact of being the legal basis of all other rights, but also by forming an integral part of all human rights that are essential for guaranteeing access for all human beings of all goods, including legal possession of those necessary for the development of their physical, moral and spiritual existence.
According to one writer, the individual’s right “to respect of his life” may be considered both as a civil right and an economic and social right. As a civil right, its sole counterpart will be a negative obligation of the states to refrain from any infringement of this or to prevent its possible infringement by a third party (duty of diligence). As an economic and social right, it will, on the contrary, entail a positive obligation of the state to ensure that the individual has an adequate standard of living by providing him, for example, with adequate food and medical care. Legally speaking, the right to life would thus appear to be a hybrid. However, the second aspect of the right can be adequately addressed under Article 16 of the Charter.
As regards the exact content or subject of the right to life, there are some open-ended issues in the ACHPR such as the expression ‘human being’, ‘arbitrary deprivation’, and ‘derogation’ aspect of the right. The African Commission has so far only ruled on the existence of violation of the rights under Article 4 without specifying the content of the right and the issue remains to be open. How the word ‘human being’ be used specially in determining the beginning and end of human life? The reply to this question has some important consequences for the legislation of such practices as abortion and euthanasia. Article 4 of the American Convention on Human Rights clearly guarantees the right to life “in general from the moment of conception.” So the position of African Charter seems not embark on this thorny topic and to leave the task of setting such matters to national legislation.
Article 4 is also some how different from the other instruments as regards its formulation of the permissible infringements of this right. It does not mention some exceptions to the right to life as capital punishment for serious crimes except the prohibition of arbitrary deprivation of the right. The Charter does not also define what constitutes arbitrary taking of life, neither has the commission yet given such definition. Does it refer to illegality, illegitimacy, injustice or inequity, unreasonableness, rule of law, due process of law or else? Therefore, it will be the task of the commission to clarify the limits of such terms of the Charter. One writer summarizes the prevailing international norm as:
It appears that the general understanding of arbitrary deprivation of life is extra-judicial killing which is well established in international law. The general consensus in the interpretation of the right to life in human rights instruments is that it is not derogable, except in certain circumstances judicially recognized or resulting from lawful acts of war or self-defense.
Therefore, though not mentioned in the African Charter, the right to life is not an absolute right given the internationally recognized norms on the interpretation of the right.
The African Commission has ruled on in a number of cases on the violation of the right concerned. It was in relation to three communications lodged in 1991 and 1992 against Malawi that for the first time, the African Commission concluded that there had been a violation of that right by a state party to the Charter. One of the communications alleged among other things that peacefully striking workers had been shot and killed by the police. The commission held that violation of Article 4 occurred when ‘peacefully striking workers were shot and killed by the police.’
In the communication lodged against Chad (1992), the Commission held that “The African Charter specifies in Article 1 that the state parties shall not only recognize the rights, duties and freedoms adopted by the Charter, but they should also ‘undertake . . . measures to give effect to them’. In other words, if a state neglects to ensure the rights in the Charter, this can constitute a violation even if the state or its agents are not the immediate cause of the violation. Thus, the Commission held that the actions could still be imputed to the state, it being responsible for ensuring the protection of the rights of those in its territory. Chad is, therefore, responsible for the violations of Article 4 for several accounts of killings and also disappearances which the government did not attempt to prevent or investigate afterwards.
This decision of the Commission is interesting. It recognizes the theory of Drittwirkung der Grundreht developed by German lawyers, according to which a state party to an instrument for the protection of human rights is responsible not only for violations of rights committed by its agents, but also for those committed by individuals (natural or judicial persons).
It was also in the tragic massacre/genocide of the Rwandans that the Commission found serious violation of Article 4. In its recent decision in the well known Ogoni case and its leaders including Ken Saro-Wiwa, the Commission held that there had been a violation of Article 4 of the African Charter by a state party (Nigeria) in relation to four communications alleging a number of violations to the detriment of two persons sentenced to death and eventually executed by the Respondent State despite the fact that the Commission had indicated provisional measures. Here is some important part of the Commission’s reasoning:
“Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of Article 4. The violation is compounded by the fact that there were pending communications before the Commission at the time of executions, and that the commission has requested the government to avoid causing any ‘irreparable prejudice’ to the subjects of the communications before the Commission had concluded its consideration. It is a matter of deep regret that this had not happened. The protection of the right to life in Article 4 also includes a duty for the state not to purposefully let a person die while in its custody. Here at least one of the victims lives was seriously endangered by the denial of medication during detention. Thus there are multiple violations of Article 4.”
In another recent decision (May 2000) against Sudan, the commission held that “denying people food and medical attention, burning them in sand and subjecting them to torture to the point of death point to a shocking lack of respect for life [and]… constitutes a violation of Article 4.”
Another important initiative of the African Commission regarding the right to life was the adoption of resolution in which it, inter alia, urged all states.
that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure the persons accused of crimes for which the death penalty is a competent sentence are afforded all the guarantees in the African charter.
and called upon all state parties
“that still maintain the death penalty to: a) limit the imposition of the death penalty only to the most serious crimes; b) consider establishing a moratorium on executions of death penalty; c) reflect on the possibility of abolishing the death penalty.
When we come to the right to integrity of the person (both physical and moral), it is also given protection together with the right to life under single provision, article 4.The right of every individual to physical integrity is generally interpreted as a right to the protection of the body from any violation not freely consented to, such as the removal of an organ from a living person or a mutilation as punishment. The recognition of this right is of particular importance in the African context given the prevalence of certain traditional practices such as clitoridectomy, excision or infibulations. These three types of female circumcision involve a painful procedure with sometimes grave, if not fatal, physiological and psychological consequences for the infant or adolescent undergoing it. Thus it constitutes the violation of physical integrity protected under Article 4.
There may be an apparent contradiction between this individual right and the practice of female circumcision as part of the tradition of African peoples as falling under Articles 20 (1), 22 & 18 (2) which makes it an obligation of the state to assist the family as the custodian of the traditional values recognized by the community. However, such conflict should be resolved in favour of protecting individual rights. This is what can be observed from the widespread practices, policies and laws of different African countries prohibiting such harmful practices. Article 61 of African Charter also refers to African practices consistent with international norms on human and peoples’ rights. Indeed, Article 21 (1) of the African Charter on the Rights and welfare of the Child shows firm stand of African states against harmful social and cultural practices. The same position is also held under the Protocol on the Rights of Women in Africa (Art. 5). Nonetheless, the challenge is the persistence of such practice in certain far from negligible parts of the African continent including Ethiopia.
- The Right to Dignity and Prohibition of Torture and Inhuman Treatment/ punishment (Art. 5)
Article 5 provides:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, in human or degrading punishment and treatment shall be prohibited.
This provision essentially protects dignity- the only right in the African Charter described as ‘inherent in a human being’- and then lists certain examples of exploitative practices which would constitute violations of this right. Guaranteeing the right of every individual to the respect of the dignity is an expression of the fundamental idea on which the concept of human rights is based. The expression of such guarantee which is now self-evident carries high significance in a continent which experienced colonization and slavery, the later still a reality in certain regions.
The individual’s right to recognition of his legal status may be considered as the first expression of his dignity, legally recognized as a subject-not as an object- of rights and obligations.
The second part of Article 5 prohibits in general all forms of exploitation and degradation of the individual. The list of prescribed forms of treatment is not exhaustive. The usual reference to ‘forced or compulsory labour’ is not included. Forced labour, like servitude, is akin to the exploitation of man and falls under this prohibition. Moreover, this provision should also be understood in light of ILO convention No. 105 on the Abolition of Forced Labour adopted on 25 June 1957 to which a significant number of African states have acceded. It should also be read in conjunction with Article 29 (2, 4 and 6) of the African Charter which lays down the individual’s duty to serve his national community, to strengthen social and national solidarity and to work to the best of his abilities.
As regards physical or moral torture and cruel, in human or degrading treatments, they are expressly prohibited by the African Charter. Like the other general human rights instruments, the Charter does not define them, the reason usually being the difficulty of defining them certainly.
Amnesty International provides the following on the point of difficulty of defining torture:
There is a good reason why the concept of torture resists precise and scientific definition; it describes human behaviour and each human being is unique, with his own pain threshold, his own psychological make up, his own cultural conditioning. Furthermore, torture is a concept involving degree on a continuum ranging from discomfort to ill treatment, to unbearable pain and death, and a definition must resort in part to qualitative terms which are both relative and subjective.
Still, we can seek for some assistance from the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (Art.1 (1)). The African system can also take some inspiration from the jurisprudence of European Court of Human Rights.
The African Commission has found the violation of Article 5 from a number of communications against member states. Certain aspects of imprisonment have constituted violations of Article 5 such as overcrowding, beatings, torture, excessive solitary confinement, shacking within a cell, extremely poor quality of food and denial of access to adequate medical care. In another case the Commission held that article 5 prohibits not only torture, but also cruel, in human or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his/her will or conscience. Nonetheless, in none of the above findings, the Commission did attempt to give meaning to those crucial terms used under Article 5. Therefore, it yet remains for the commission and now the newly established court to articulate as to what amounts to torture, cruel, in human and degrading punishments or treatment. There is nothing wrong to take lesson from the experiences of the other regional systems on the same topic from the point of view of universality of human rights.
- The Right to Liberty and Security of Person (Art. 6)
Under Article 6 of the African Charter
“every person shall have the right to liberty and to the security of his person. No one may be deprived of his freedom, except for reasons and conditions laid down by law. In particular, no one may be arbitrarily arrested and detained.”
The right to liberty and security of the person implies physical liberty of the individual in the society in terms of prohibiting unnecessary arrests and detention. In other words, no one should be dispossessed of his or her liberty in an arbitrary fashion. To the extent that infringements are justified, they may also be done only in terms of legal rules established in advance. Therefore, this provision requires the two conditions for limiting the right: the requirements of legality and absence of arbitrariness. This manner of understanding, which is also recognized under Article 9 of the ICCPR, limits the extensive application of the claw back clause under Article 6 of African Charter. However, unlike Article 9 (sub articles 2 to 5) of the ICCPR, Article 6 of ACHPR does not make it clear what the rights of the person arrested or detained are, and does not provide for any right to reparation in the event of illegal arrest or detention. Neither does it regulate the conditions of detention nor prohibit imprisonment for failure to perform a contractual obligation. Hence, once again there is a need to refer to international human rights standards as to the level of procedural guarantees of detained or arrested person.
The African Commission has, though suffers from particular reasoned argument, ruled on the violation of Article 6. In one of its decision, it indicated that a detention without any charge being brought was to be regarded as arbitrary. In a communication against Nigeria alleging a number of violations by the Government of Nigeria, the Commission held that ‘ a decree that allows the government to arbitrarily hold persons critical to the government for up to three months without bringing them before the court violates the right protected in Article 6.’ By this decision, the Commission indicated that a ‘lawful measure, or taken under a law, can, nevertheless, prove to be ‘arbitrary’ by virtue of its content. When considering the length of detention without trial, the Commission held that ‘three years’ detention without trial or even three months may be sufficient to violate Article 6. Similarly holding individuals indefinitely will also breach the article.
- The Right of Fair Trial [Article 7] 426
Article 7 of the African Charter provides that:
1) Every individual shall have the right to have his caused heard. This comprises:
a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.
b) The right to be presumed innocent until proved guilty by a competent court or tribunal;
c) The right to defense, including the right to be defended by counsel of his choice;
d) The right to be tried within a reasonable time by an impartial court or tribunal.
e) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committees. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
The concept of the right to fair trial is inevitably bound up with the concept of justice. It is also a fundamental right which guarantees the judicial protection of rights. It has also some link to the concept of rule of law. According to European Court of Human Rights ‘it is the only human rights whose effective respect is itself a condition for effective monitoring of the implementation of all the other rights established by international instruments concerned.’
The right to fair trial consists, as envisaged under Article 7 (a) of ACHPR, first and foremost, of the right of all individuals to appeal to competent national courts or tribunals. An important issue here is the actual meaning of the world ‘appeal’. Does it guarantee a right of appeal to a superior court from the decisions of lower courts or tribunals or merely the right to simply seek a judicial remedy at a first instance? The nature of the right and decisions/practices of the Commission is inclusive of both rights. Please read a lot of communications lodged against Nigeria alleging the violation of this right in the 1990s!
Article 7 (1) (b) lays down the right to be presumed innocent until proved guilty . . . Presumption of innocence as an aspect of the right to fair trial is a concept applicable only in criminal proceedings. It means that the general burden of proof must lie with the prosecution, or in terms more appropriate for civil law system, that the court, in its inquiry into the facts, must find for the accused in case of a doubt. Nonetheless, the practice in most African countries, according to Nmehielle, contradicts the concept culminating in the reverse principle whereby it becomes the burden of the accused persons to prove their innocence. The Charter also requires that the guilt of the accused be determined by a competent court or tribunal. Though not yet determined in the jurisprudence of the Commission, ‘competent court’ means one in which the judges must be duly qualified, meeting all the natural and legal qualifications; and one, which is adequate, suitable and capable of administering law. The reasoning is that the court must be independent and impartial, as well as separate from the other branches of government.
Article 7(1) (c) recognizes the right to defense, including the right to choose a counsel of his choice.’ The purpose of the guarantee of the right to representation is to ensure that proceedings against an accused person will not be taken place without adequate representation of the case for the defense. In addition, it ensures the equality of arms between the accused and the prosecution. The problem here is that the Charter does not make any provision in terms of state-provided legal assistance which is one of the avenues through which indigent persons can have access to legal representation.
Article 7 (1) (d) guarantees the right of a person to be tried within a ‘reasonable time’. The purpose here is to protect all parties to court proceedings against excessive delays. As can be seen from the experience of other regions, the guarantee underlines the importance of rendering justice without delays, which might jeopardize its effectiveness and credibility. The reasonableness of the length of time of the proceedings both in criminal and civil cases depends on the particular circumstances of the case. There is no absolute time limit. Factors that are always taken into account are the complexities of the case, conduct of the applicant and the conduct of the competent administrative and judicial authorities. From the decisions of the Commission, this impartiality under Article 7 (1) (d) is in close relationship with independence. Thus, a court or a tribunal must be independent of the executive and also of the parties to the case.
Finally, Article 7 (2) prohibits ex-post facto laws, and also makes provision against retroactive punishments. It further outlaws transferred punishment to any other person who is not the offender. Such prohibitions are clearly important in ensuring due process in criminal proceedings. The second arm of Article 7 (2) dealing with the personal nature of punishment is very relevant to the situations in Africa which is known for its customary rule of collective liability. Thus, it will go a long way to address the victimization of the relatives (immediate or extended) of alleged offenders if the later cannot be reached.
Here something to be raised in relation to the right to fair trial under the Africa Charter is that unlike other human rights instruments, the Charter fails to guarantee some other pertinent aspects of that right. For instance, the Charter does not make any provision regarding the right to public hearing (or in camera as the case may be) or the public pronouncement of the judgment. One writer notes the danger of this in that ‘dictatorial African governments are not unknown to establish secrete courts or tribunals, which conduct secret proceedings and pass secret judgments, the outcomes of which are usually predetermined’. In addition, the Charter does not make any provision on the right of an accused person to be assisted by an interpreter. This right may be very relevant in Africa where majority of the peoples are indigenous with languages different from the official language of many African states. Furthermore, the African Charter does not guarantee the right against self-incrimination, or freedom from double jeopardy, nor the right to compensation in violation of the right to fair trial or miscarriage of justice.
Being aware of the deficiencies of the Charter, the African Commission adopted a Resolution on the Right to Fair Trial on March 1992. The resolution goes beyond Article 7 of the Carter to provide for the guarantee of the right to legal aid for indigent persons, the right to assistance of a free interpreter, and the right to appeal to a higher court. Once again the resolution did not include the right to compensation for miscarriage of justice, freedom from double jeopardy and the right against self-incrimination. Therefore, on such and other areas of insufficiencies, it will be responsibility of the African Commission to apply international standards via the power vested in it under Articles 60 and 61 of the charter.
- Freedom of Conscience and Religion [Article 8]
Article 8 previous as follows:
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of those freedoms.
Read Article 18 of the ICCPR and compare with the above African Charter provision.
Unlike Article 18 of ICCPR, Article 8 of the African Charter does not expressly recognize freedom of thought. It is stated that thought is to some extent a process, whereas conscience or opinion, is the result of this process. There are two approaches on the protection of thought. The first line of approach is that freedom of thought does not need to be protected and that it is only when thought is expressed that such protection is necessary (downstream protection). This is ensured under Article 9 of the African Charter. The second approach asserts that freedom of thought needs to be protected for itself (upstream protection) quite apart from the question of its possible subsequent expression. To permit the free operation of thought process means authorizing the free expression of thought. Freedom of expression is thus the corollary of freedom of thought; the two freedoms are inherently indissociable as the effective enjoyment of them is the fruit of the dialectical relationship between them.
Therefore, the right of freedom of conscience includes freedom of thought. It generally means the right to hold a belief. This belief may be religious or otherwise. The essence of the freedom of conscience is to enable an individual to hold a thought or belief that is independent of a state’s or other entity’s control per se.
Although Article 8 formally guarantees the right to freedom of conscience and religion, it does not specify what is meant by the profession and free exercise of religion. Article 18 of the ICCPR is quite exhaustive on this point as it sets the possibility for the individual” either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” It also recognizes the liberty of parents to ensure the religious and moral education of their children in this field in conformity with their own convictions. Freedom to profess and practice one’s religion could include freedom to maintain or change one’s religion or beliefs.
The last point relates to the scope of the freedom laid down under ACHPR. The freedoms of religion and conscience may only be subject to limitations when they are envisaged in their external dimension; in their internal dimension, on the other hand, they would appear to be guaranteed absolutely. Thus, their limitation will be made based on law and order. Though this forms part of the ‘claw back clause’, it seems to balance between freedom to profess and practice one’s religion on the one hand, and the protection of individuals or society from religious or pseudo-religious practices. The African Commission has not yet passed any ruling on the content of the law as embodied by Article 8 except few declarations of the violations of the right. In its decision concerning communication 56/91c alleging the persecution of the Jehovah’s witnesses by the Government of Zaire (arbitrary arrests, appropriation of church property, and exclusion from access to education), it merely stated that such harassment constitutes a violation of Article 8. In dealing with a case against Sudan, the Commission has held that freedom of religion- in that case, freedom to apply Sharia law has to be exercised in away that does not violate the equal protection of the laws. Sharia trials may not be imposed, and everyone should have the right to be tired by a secular court if they wish.
In virtually all the cases actually decided, the Commission failed to define what constitutes violation of conscience, or of the right to freely profess and practice one’s religion.
- The Right to Information and Freedom of Expression (Art. 9)
Please read Article 19 of ICCPR and Article 9 of ACHPR and then make a comparison!
Article 9 of ACHPR provides that
“every individual shall the right to information. Every person shall have the right to express and disseminate his opinions within the law”.
Unlike the ICCPR provision, Article 9 of African Charter is drafted in general terms which misses some detail formulation of the right. The right of freedom of expression, while not above any other right by degree, has been identified as forming an essential basis for the existence and functioning of a healthy democracy in any society. The statement of the Inter-American Court of Human Rights in the Compulsory Membership Case on this right is persuasive. According to the court:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion . . . It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed . . . consequently, it can be said that a society that is not well informed is not a society that is truly free.
In one communication alleging the violation of this right by Nigeria, the African Commission stated:
Freedom of expression is a basic human rights, vital to an individual’s personal development and political consciousness, and participation in the conduct of public affairs in his country. Under the African Charter, this right comprises the right to receive information and express opinion.
The right to be given detailed references under Article 19 of ICCPR, namely, the freedomsd “to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
Therefore, effective application of Article 9 of ACHPR needs its correlation to the more elaborate universal instrument.
The other area of vagueness of Article 9 is the clause limiting the right, which only appears to apply to the individual’s freedom to express and disseminate his opinions, thus rendering ones right to receive information absolute. Nonetheless, this can not be logical interpretation as the right to information could be subject to limitation. The close correlation between freedom of expression and freedom of information points to the conclusion that the limitation laid down in Art.9 (2) logically applies to the whole Article.
Thus, the rights must be exercised ‘within the law.’ There is no further qualification in such limitation unlike the ICCPR (Art.19 (3)).
In this respect, the Commission invoked Article 27 of the Charter in support of its strict interpretation of the rights limitation clauses. In its view:
The only legitimate reasons for limitation to the rights and freedoms of the African Charter are found in Article 27 (2), that is, the rights of the Charter shall be exercised with due regard to the rights of others, collective security, morality and common interest.
Moreover, the African Commission found the violation of Article 9 of the Charter in a number of communications against Nigerian Military government- imprisonment of journalist, proscription of publication and confiscation of newspapers.
In relation to Article 9 (2), the Commission said:
According to Article 9 (2) of the Charter, dissemination of opinions may be restricted by law. This does not, however, mean that national law can set aside the right to express and disseminate one’s opinions guaranteed at the international level; this would make the protection of the right to express ones opinion ineffective. To permit national law to take precedence over international law would defeat the purpose of codifying certain rights in international law and indeed, the whole essence of treaty making.
The outline of the above and some other case-law of African Commission reveals that the Commission has sought to denounce all unwarranted violations of freedom of expression and freedom of the press in particular which without any doubt are crucial vehicles for the promotion and protection of human rights in African continent.
- Freedom of Association and Assembly [Articles 10 & 11].
Freedom of association and freedom of assembly are twin rights that are separately guaranteed by the African Charter. The nature of these rights make them interrelated. They share the objective of allowing individuals to come together for the expression and protection of their common interests.
Article 10 provides
“every person shall have the right to freely form associations with others provided he/she abides by the law. No one may be compelled to join an association, subject to an obligation of solidarity provided for in Article 29”.
Freedom of association involves the freedom of individuals to come together for the protection of their interests by forming a collective entity which represents them. These interests my be of political, economic, religious, social, cultural, professional or labour union nature.
Article 10 recognizes the two inseparable aspects of the same freedom, that is, the right to free association and the freedom not to join an association. But the right against forced association is made to be supplemented by obligations of solidarity under Article 29. Does this relate to all grounds under article 29 or to the concept of social and national solidarity which uses the same term? C. Heyns argues that article 10 (2) refers to Article 29 (4), in view of the explicit use of the word ‘solidarity’ in Articles 10 (2) and 29 (4) and the fact that reference is made to the ‘obligation of solidarity’ in the singular form in Article 10 (2). Do you agree with this line of interpretation?
Finally, the scope of the individual’s right to free association is guaranteed “provided that he abides by the law”.
what will be the test of such restrictive law? Make a reference to the formulation under Article 22 (2) of ICCPR? Again read the 1948 ILO Convention concerning Freedoms of Association and Protection of the Right to Organize (Conv. No. 87/48).
Nonetheless, it remains for the African Commission to clarify the content of the right under Article 10: working definition of association, whether this right includes professional associations and trade unions.
As has been observed, the right to freedom of assembly complements the right to freedom of association. Freedom of assembly, however, goes beyond the meeting of formal associations, and includes individuals associating to assemble in their right as individuals. Freedom of assembly envisages holding of public meetings, mounting of demonstrations through marches, picketing and processions. One limitation that is of international acceptance is that the assembly must be peaceful. The other grounds of limitation are expressly stated under Article 11 ‘which are to be determined by law.’ But the question remaining open is how far such laws will restrict the exercise of this right (issue of manner, time, and place)?
- Other Rights
You are invited to read those remaining rights of civil and political nature under the ACHPR and compare their substantive content with the ICCPR and other regional human rights documents. These rights include: freedom of movement and allied rights (article 12), the right to political participation (article 13), right to property (article 14), and other family rights (article18).
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