The African Charter on Human and Peoples’ Rights: how effective is this legal instrument in shaping a continental human rights culture in Africa?

The past two decades has welcomed a shift in the attitude towards human rights especially within the African state, widely recognised as an ‘egregious human rights violator’[1] where dualism thrives. As a result of increasing international pressure in tandem with widespread despotic regimes across the African continent such as those of Idi Amin and Jean-Bédel Bokassa, the African Charter on Human and Peoples’ Rights (ACHPR) was finally adopted in June 1981 and entered into force in October 1986.[2] This unique yet undeniably flawed human rights instrument aims to ‘promote and protect human and peoples’ rights and freedoms’[3] whilst taking into consideration the legal and political cultures of African states as well as preserving African tradition and identity.

This article will address the normative flaws of the Charter, emphasising the inadequate coverage of civil and political rights, the detrimental effect of clawback clauses as well as the futile nature of articles’ 58 and 59. The function of the African Commission will be outlined as well as the roles and relationship between the institutions that aid in the implementation of the Charter. In addition, the basic nature of the African state will be unveiled in order to demonstrate the pre-eminence of state sovereignty, self-determination and cultural tradition that subsequently hinder the constructive application of the African Charter. Finally, some distinct features of the Charter will be highlighted in order to determine whether this legal instrument has made a significant contribution in shaping a continental human rights culture. Ultimately this article will affirm the view that the Charter is not as progressive as it is made out to be and although it may have increased awareness of human rights, it still remains a façade[4] for most African countries enabling them to appear politically correct in their quest to satisfy the international community.

 

I.   Normative flaws of the African Charter

Although it is evident that the African Charter is tailored specifically to the African context, it is contentious due to its strong emphasis on social, economic and cultural rights and the inadequate coverage of civil and political rights. An example of this inadequacy is the lack of explicit recognition of the right to privacy and the right against forced or compulsory labour. Furthermore, Article 7 and Article 13 concerning the right to a fair trial[5] and the right to political participation[6] are considered to be incomplete compared to international standards.[7] Such rights are further limited by the operation of claw-back clauses, which plague the Charter.

Claw-back clauses ‘permit a state, in its almost unbounded discretion, to restrict its treaty obligations or the rights guaranteed by the African Charter’.[8] It is worth noting that the Charter does not contain a derogation clause allowing a country to temporarily abstain from their obligations under a treaty in an emergency. Derogation clauses are temporary and triggered in times of emergency, whereas claw-back clauses ‘may be applied even in normal situations, so long as national law is passed to that effect’.[9] In most African countries national law has primacy, therefore human rights can be limited or even violated despite being protected by the Charter. This is also significant as domestic laws in African states are considered to be ‘draconian’,[10] dating back to the colonial period. Claw-back clauses aim at limiting civil and political rights such as Article 9(2), which provides that ‘every individual shall have the right to express and disseminate his opinions within the law’.[11] Similarly in Article 8, freedom of conscience is ‘subject to law and order’[12] and the right to liberty and security in Article 6 may be deprived ‘for reasons and conditions previously laid down by law’.[13] Claw-back clauses are detrimental to the protection of human rights and pose further restrictions on civil and political rights which are already inadequately covered by the Charter.

Articles 58 and 59 of the Charter concern the reporting of human rights violations and the publicity of the Commission’s work. These articles are ineffective and fail to accomplish their aim. The interaction between the Commission and the various institutions of the African Union such as the Assembly is disproportionate, as the Assembly monitors and scrutinises the work of the Commission.[14] This is demonstrated in article 59(1)[15] where ‘all measures taken within the provisions of the present Charter shall remain confidential until the Assembly shall otherwise decide’.[16] The Assembly is comprised of Heads of State of the African nations, therefore it is unlikely that it would allow information that is particularly harmful to their image to be publicised. Furthermore, most African States would not condone the violations of another State. The fact that the Heads of states (usually the violators of human rights) have authority over the Commission ‘undermines the legality of the system’[17]. This is an issue that needs to be addressed by altering the substantive content of the Charter. Having explored specific normative flaws of the Charter, it can be argued that this human rights instrument ‘cannot adequately respond to the historical reality and the political and social needs of Africa’,[18] severely limiting its contribution to shaping a human rights culture.

II.   Institutional difficulties

The responsibility of implementing the Charter primarily lies with institutions such as the African Union, the African Commission and the African Court of Justice. Having said this, ‘structural weaknesses have plagued the African human rights system since its inception’.[19] The African Commission consists of eleven members ‘chosen from amongst African personalities of the highest reputation’.[20] The primary function of the Commission is ‘to promote human and peoples’ rights and ensure their protection in Africa’[21] however its capacity and effectiveness in doing so has been questioned.

Despite the assertion that the Commission is ‘steadily becoming more robust in performing its protective mandate’,[22] the Commission provides no effective remedy for the violation of human rights. Its recommendations are merely advisory and not binding. This is shown in the Ken Saro-Wiwa case. Saro-Wiwa was sentenced to death in Nigeria along with a number of other activists – the request by the Commission to release them was ignored.[23] This demonstrates the lack of authority and diminishing power of the Commission in carrying out its protective function. This limitation is also evident in the implementation of article 62[24] requiring states to ‘submit every two years…a report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized and guaranteed by the present Charter’.[25] Despite this being an obligation the Commission cannot compel states to submit and only 8 states have submitted all their reports.[26]

The Protocol on the African Court of Human and Peoples’ Rights[27] adopted by the OAU, aimed to enhance and assist the protective function of the Commission. When the OAU was replaced by the African Union (AU), the Assembly adopted the Protocol of the Court of Justice[28] and recently merged the African Court on Human and Peoples’ Rights with the African Court of Justice to form the African Court of Justice and Human Rights.[29] It is too early to speculate on the effective functioning of the court as only a few states have accepted its jurisdiction (Libya, Mali and Burkina Faso.)[30] However this institution is a future indication of more expansive protection and recognition of human rights and could rectify the current weaknesses of the Commission, providing ‘homogenous jurisprudence for Africa’.[31] Having said this, lack of resources is a major obstacle in implementing the Charter, prompting the view that there is no need for a new institution – resources should be used to strengthen the Commission. In order to successfully implement the Charter and augment its role in shaping a human rights culture, there needs to be a clear distinction and demarcation of powers between the institution that protects human rights and the institution that promotes human rights.

 

III.   The Nature of the African State and its hostile environment

The African Charter is defined as an application of the UN Declaration of Human Rights to the African perspective.[32] It is a legal instrument ‘written by Africans for Africans’.[33] Having said this, it is evident that African governments are less than willing to condemn human rights violations in their own states. This is demonstrated not only by the emphasis on development and political stability at the expense of human rights but also in the drafting of the African Charter itself. The Senegalese judge Keba M’Baye, also known as the ‘father’ of the African Charter,[34] chaired the council of experts that drafted the Charter and justified the violation of human rights when proclaiming that ‘African governments appear clearly to have sacrificed rights and freedoms for the sake of development and political stability [and] this situation can be explained and even justified’.[35] This indicates that the Charter, even from its genesis, would not have the desired effect in shaping a human rights culture.

As well as prioritising development, the African state is an entity recognised for its desire to sustain ‘an African culture that is permanent, static, and unchanging’ free from westernization. The principle of non-interference in internal affairs and the manner in which it is so strenuously upheld, is a means of preserving African traditions. It is a principle enshrined in Article 3(2) of the OAU Charter[36] therefore allowing African states to turn a blind eye to human rights violations that occur within the continent (as was the case of the 1994 genocide in Rwanda). Furthermore, African states are reluctant to bring applications of violations against other African states.

The implementation of the Charter is further hindered by African states asserting their sovereignty by permitting national laws to supersede the Charter and international instruments. As a result, the Charter is unable to ‘protect individuals from their governments who are the greatest violators of the human rights freedoms it recognises and enshrines’.[37] Subsequently, the African Charter does not have universal applicability. This is also the case with regard to Article 68[38] of the Charter whereby an amendment will only come into force in states that have accepted it in accordance with their Constitution. Kenya is an example of a state suspicious of international law, asserting the supremacy of national laws in Article 2 of its new Constitution.[39] It was ruled with reference to the African Charter in the case of Pattni & another v Republic[40] that ‘the constitution as law is paramount’.[41] Although more African countries are incorporating a Bill of Rights into their constitutions, ‘we cannot and should not continue to delude ourselves that [Africa has] a human rights system. What we have is a façade, a yoke that African leaders have put around our necks’.[42]

IV.   Unique features of the African Charter and its positive implications

Despite the existence of multiple international human rights instruments such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR), the African Charter consolidates the notion that rights are interdependent and indivisible[43] by presenting them in one single instrument. This not only ensures the promotion and protection of all the rights set out in the Charter, but also appeals to the African continent. The Charter introduces third generation rights such as the right to national and international peace and security (Art 23(1)),[44] the right to a general satisfactory environment (Art 24)[45] and the right to economic, social and cultural development (Art 22)[46] therefore ensuring that these new rights are given the importance they deserve in developing countries. The significance of these rights was expressed in the case of SERAC & Another v Nigeria[47] where it was declared that ‘clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa’.[48]

The Charter is also unique as it has developed a contextual approach to human rights.[49] It recognises that human rights norms ‘are not universally applicable but rather vary with time and according to regional cultural variations’.[50] Despite being labelled unenforceable ‘lofty ideals’,[51] addressing groups and communities is essential for Africa as much of it is divided along tribal lines. Ultimately, the African Charter is designed to respond to the ‘historical reality’[52] of Africa, reintroducing ‘values that Africa needs most: commitment, solidarity, respect and responsibility’.[53]

Conclusion

Although much criticism aimed at the African Charter is justified and the initial need for an African Charter has been questioned due to existing human rights instruments, the Charter caters specifically for the African continent. The normative flaws discussed above can only be corrected through reformation of the Charter. There is an urgent need for clear allocation of responsibility in order to increase cooperation and efficiency between the institutions involved in implementing the Charter. Through careful management of resources, and effective national implementation and publicity, the standing of the Charter can be improved, guaranteeing the promotion and protection of human rights within the continent. Despite the flaws that have arisen since the genesis of the Charter in a continent where most African languages do not have an expression for ‘human rights’,[54] the Charter provides a solid foundation on which a human rights culture can be fostered. However there is still much progress to be made before the Charter can be credited with shaping a human rights culture in Africa.

Lucinda Patrick-Patel

[1] Makau Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’ [1999] 21 Hum Rts Q 342, 343

[2] African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3/REV.5 (entered into force 21 October 1986)

[3] African Charter on Human and Peoples’ Rights, preamble

[4] Nmehielle V, The African Human Rights System: Its Laws, Practice, and Institutions (Martinus Nijhoff Publishers 2001) 325

[5] African Charter on Human and Peoples’ Rights 1981, Art 7

[6] African Charter on Human and Peoples’ Rights 1981, Art 13

[7] Christof Heyns, ‘The African Regional Human Rights System: The African Charter’ [2003-2004] 108 Penn St L Rev 679, 687

[8] Ebow Bondzie-Simpson, ‘A Critique of the African Charter on Human and People’s Rights’ [1988] 31 Howard LJ 643, 660

[9] Ebow Bondzie-Simpson, ‘A Critique of the African Charter on Human and People’s Rights’ [1988] 31 Howard LJ 643, 660

[10] Samantha Power & Graham Allison, Realizing Human Rights: Moving from Inspiration to Impact (Palgrave Macmillan 2000) 146

[11] African Charter on Human and Peoples’ Rights 1981, Art 9(2)

[12] African Charter on Human and Peoples’ Rights 1981, Art 8

[13] African Charter on Human and Peoples’ Rights 1981, Art 6

[14] The Constitutive Act of the African Union, Art 6

[15] African Charter on Human and Peoples’ Rights 1981, Art 59(1)

[16] African Charter on Human and Peoples’ Rights 1981, Art 59(1)

[17] Christof Heyns, ‘The African Regional Human Rights System: The African Charter’ [2003-2004] 108 Penn St L Rev 679, 695

[18] Makau Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ [1994-1995] 35 Va J Int’l L 339, 341

[19] Makau Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’ [1999] 21 Hum Rts Q 342, 343

[20] African Charter on Human and Peoples’ Rights 1981, Art 31(1)

[21] African Charter on Human and Peoples’ Rights 1981, Art 45(1)

[22] Malcolm Evans & Rachel Murray, The African Charter on Human and Peoples’ Rights: The System in Practice 1986-2006 (2^nd edn, Cambridge University Press 2008) 37

[23] <www.news.bbc.co.uk/onthisday/hi/dates/stories/november/10/newsid_2539000/2539561.stm> accessed 1 November 2014

[24] African Charter on Human and Peoples’ Rights 1981, Art 62

[25] African Charter on Human and Peoples’ Rights 1981, Art 62

[26] States that have submitted all their reports: Cameroon, Cote d’Ivoire, Gabon, Liberia, Mozambique, Sahrawi Arab Democratic Republic, Senegal and Uganda <http://www.achpr.org/states/> accessed 26 November 2014

[27] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights 1998

[28] Protocol of the Court of Justice of the African Union 2003

[29] Protocol on the Statute of the African Court of Justice and Human Rights 2008 (not yet in force)

[30] <http://www.africancourtcoalition.org/index.php?option=com_content&view=article&id=87:ratification-status-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights&catid=7:african-union&Itemid=12> accessed 1 November 2014

[31] Marc Schulman, ‘The African Court of Justice and Human Rights: A Beacon of Hope or a Dead-end Odyssey?’ [2013] Inkundla 2

[32] Mutombo Nkulu N’Sengha, ‘The African Charter on Human and Peoples’ Rights: An African Contribution to the Project of Global Ethic’ (December 2010) <http://globalethic.org/Center/mutombo1.htm> accessed 1 November 2014

[33] Mutombo Nkulu N’Sengha, ‘The African Charter on Human and Peoples’ Rights: An African Contribution to the Project of Global Ethic’ (December 2010) <http://globalethic.org/Center/mutombo1.htm> accessed 1 November 2014

[34] El-Obaid Ahmed El-Obaid & Kwadwo Appiagyei-Atua, ‘Human Rights in Africa – A New perspective on Linking the Past to the Present’ (1996) 41(4) McGill LJ 819, 827

[35] El-Obaid Ahmed El-Obaid & Kwadwo Appiagyei-Atua, ‘Human Rights in Africa – A New perspective on Linking the Past to the Present’ (1996) 41(4) McGill LJ 819, 827

[36] OAU Charter 1963, Art 3(2)

[37] Ebow Bondzie-Simpson, ‘A Critique of the African Charter on Human and People’s Rights’ [1988] 31 Howard LJ 643, 661

[38] African Charter on Human and Peoples’ Rights 1981, Art 68

[39] The Constitution of Kenya 2010, Art 2

[40] Pattni & Another v Republic [2001] KLR 262

[41] Pattni & Another v Republic [2001] KLR 262

[42] Vincent Obisienunwo Orlu Nmehielle, The African Human Rights System: Its Laws, Practice, and Institutions (Martinus Nijhoff Publishers 2001) 325

[43] Moussa Samb, ‘Fundamental Issues and Practical Challenges of Human Rights in the Context of the African Union’ [2009] 15(1) Annual Survey of International & Comparative Law 61, 73

[44] African Charter on Human and Peoples’ Rights 1981, Art 23(1)

[45] African Charter on Human and Peoples’ Rights 1981, Art 24

[46] African Charter on Human and Peoples’ Rights 1981, Art 22

[47] SERAC and Another v Nigeria [2001] AHRLR 60

[48] SERAC and Another v Nigeria [2001] AHRLR 60, [68]

[49] Julia Swanson, ‘The Emergence of New Rights in the African Charter’ [1991] 12 NYL Sch J Int’l & Comp L 307, 322

[50] Julia Swanson, ‘The Emergence of New Rights in the African Charter’ [1991] 12 NYL Sch J Int’l & Comp L 307, 308

[51] Ebow Bondzie-Simpson, ‘A Critique of the African Charter on Human and People’s Rights’ [1988] 31 Howard LJ 643, 657

[52] Makau Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2011) 71

[53] Makau Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ [1994-1995] 35 Va J Int’l L 339, 380

[54] Mutombo Nkulu N’Sengha, ‘The African Charter on Human and Peoples’ Rights: An African Contribution to the Project of Global Ethic’ (December 2010) <http://globalethic.org/Center/mutombo1.htm> accessed 1 November 2014