African Charter on Human and Peoples’ Rights
In this article, we will examine the history and formation of the African Charter on Human and Peoples Rights. We shall discuss the historical creation of the African Charter, and the specific content within of the African Charter. We will also discuss the implications of the African Charter to international relations. Furthermore, in this article, we shall also examine the many contributions of the African Charter to domestic and international human rights.
What is the African Charter on Human and Peoples’ Rights?
The African Charter on Human and Peoples’ Rights is an international document created by members of the Organization of African Unity (OAS) in 1981 (today the African Union) outlining various human and people’s rights. There is a long history on the formation of the African Charter. The African Charter was written after detailed conversation spanning two years of writing the document. The initial conversations can be traced to decades prior, including but not limited to early international agreements such as the Law of Lagos, which called for support for human rights in Africa. The Law of Lagos followed the African Conference on the Rule of Law organized by the International Commission of Jurists. There were 194 judges, educators, and attorneys in attendance at this conference, from 23 different African countries (as well as people from nine-non African states). Again, the point of the Law of Lagos was to stress the importance of the international community to set up a human rights regime to ensure that the rights of people are to be protected (Gittleman, 1982: 670).
While the Law of Lagos serves as an important starting point for the history of the African Charter on Human and Peoples’ Rights, it was “At the first Conference of Francophone African Jurists held in Dakar, Senegal, in 1967, participants again revived the idea of the Law of Lagos on the need for a regional protection of human rights in Africa. In the Dakar Declaration, adopted after the Conference, the participants asked the International Commission of Jurists to consider in consultation with other relevant African organisations the possibility of creating a regional human rights mechanism in Africa” (ACHPR, 2016).
There was also support throughout the United Nations for the establishment of such a regional body for human rights. For example, working with the United Arab Republic, in 1969 the Untied Nations Division on Human Rights set up a seminar in Cairo, Egypt to discuss regional human rights entities, and the possibility of creating a regional body based in Africa. The comments made at this seminar showed what the goals of such a regional body were; “In an introductory statement at the seminar, the Zambian representative explained.that an important objective in establishing a human rights commission was to make the masses in non-independent Africa aware of their rights, “thereby giving impetus to their aspirations to free themselves” (Gittleman, 1982: 671).
In fact, the United Nations helped by setting up different seminars and international conferences to discuss these human rights issues. In addition such seminars and conferences, ” The UN Human Rights Commission set up an ad hoc working group and adopted a resolution calling on the UN Secretary General to provide necessary assistance for the creation of a regional human rights system in Africa. These initiatives of the United Nations with a view to getting African states to consent to the adoption of a regional human rights convention failed. Participants at one of the conferences decided to set up a follow-up committee mandated to carry out visits to African heads of state and other relevant authorities on the need for an African regional human rights system” (ACHPR, 2016). In 1979, the Monrovia Seminar on the Establishment of Regional Commissions on Human Rights with Special References to Africa was brought together throughout the UN. The conference put out the “Monrovian Proposal for the Setting up of an African Commission on Human Rights” (Gittleman, 1982: 671-672). Thus, it was in 1979 in which various OAU member state leaders asked the Secretary General of the international organization to help bring together experts to write a human rights based document for Africa (ACHPR, 2016).
The writing process for the African Charter on Human and Peoples’ Rights began in 1979 when African leaders held a meeting in Dakar, Senegal in which they began writing the initial draft of what would later be known as the African Charter. Interestingly, “It is important to note that the work of the Expert Committee was greatly influenced by the opening address of the host president, President Senghor, who enjoined the Committee to draw inspiration from African values and tradition and also to focus on the real needs of Africans, the right to development and the duties of individuals. After deliberations for about 10 days, the Committee prepared an initial draft of the Charter” (ACHPR, 2016).
Then, (primarily) state leaders met in Banjul, in the Gambia a year later, from June 8th-15th to continue working on the African Charter draft document. There continued to be great debate as to what would ultimately be included in the finalized African Charter. In fact, while eleven Articles of the Draft African Charter were agreed upon, leaders called for another meeting so that the African Charter on Human and Peoples’ Rights would be finalized (Gittleman, 1982).
Following the meeting in Banjul, the Ministerial Conference met again in 1981 for the continued writing of the Draft Charter. It was here at this conference where 40 of the 50 states attended, and finalized the African Charter document. Then, “With its task accomplished, the Ministerial Conference passed the Charter to the next level of discussion, the Thirty~Seventh Ordinary Session of the Council of Ministers. On June 10, 1981, the Secretary-General of the OAU presented before the Plenary of the Council of Ministers the Report of the Secretary-General on the African Charter on Human and Peoples’ Rights.9 Surprisingly, de- spite pre-Summit support given the Charter, early discussion by the Council cast grave doubts as to its future.10 It decided, how- ever, to take note of th~ Draft Charter and to submit it with no amendments to the Assetilbly of Heads of State and Government for the Assembly’s consideration” (Gittleman, 1982: 669). Then, the different heads of the Organization of African Union states met to go over the Draft Charter. The African Charter was then passed, without any changes (Gittleman, 1982).The African Charter on Human and Peoples’ Rights then entered force in 1986, and every member of the Organization for African Union signed and ratified the Banjul Charter by 1999 (ACHPR, 2016).
The African Charter on Human and Peoples’ Rights is one of the most important documents in a line of international human rights documents through international organizations and various political representatives. The reason that leaders pushed for the writing of a specific African Charter on human rights is because of what they felt was missing in the other international human rights documents. They argued that the existing United Nations human rights documents, as well as the European charters on human rights were centered on more western, European philosophy. The African Charter on Human and Peoples’ Rights instead worked to approach international human rights from the position of African legal and historical philosophy on matters of human rights. In addition, the African Charter also looked to address human rights issues in a way that represented the needs, wants, and traditions of Africans. As Gittleman (1982) notes, “In the opinion of the experts assembled at Dakar, problems unique to Africa justified a departure from such regional models as the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and the American Convention on Human Rights (American Convention)” (668).
Format of the African Charter on Human and Peoples’ Rights
The African Human Rights Charter has different sections, each offering a very important contribution to human rights. The first part of the Banjul Charter lays out the different human rights that are protected. Then, the Second Chapter of the African Charter on Human and Peoples’ Rights offers a very important contribution to human rights, one that has been lacking in previous documents; the Banjul Charter lays out the different duties that a person has to her and his family, the state, other communities, and society as a whole. Mutua (2000) argues that is is this reference to duties and obligations that serves as one of the key contributions by the African Human Rights Charter for human rights (the previous UN and regional documents did not address matters of duties).
Then, the second part of the overall Banjul Charter has four chapters, and goes into different ways that human rights in Africa can be protected. With regards to the four chapters in part II of the African Charter on Human and Peoples’ Rights, “Chapter I calls for the establishment of the African Commission on Human and Peoples’ Rights and lays out the structure of the Commission in detail. Chapter II concerns the functions of the Commission while chapter III deals with the procedure of the Commission.36 The final chapter of part II indicates the applicable principles by which the Commission will secure the protection of human rights in Africa. Finally, part III establishes general provisions concern ing the commencement of the African Commission on Human and Peoples’ Rights.” (Gittleman, 1982: 674).
As mentioned, where there exist several other regional human rights charters, the African Human Rights Charter has set itself apart because of the way it has approached human rights; it recognizes the importance of human rights in the world, but looks to address these issues based on African traditions. In this, the African Charter (within the Preamble) speaks clearly about fighting things like colonialism, apartheid, zionism, among other issues (Gittleman, 1982). So, it seems that the African Charter is speaking much more directly to the history of African states when it is approaching the issue of human rights.
Again, one of the primary differences between the African Charter on Human and Peoples’ Rights and other human rights documents that have come before it have to do with not only the rights granted to individuals, but also the duties that are expected of them. To the drafters of the African Human Rights Charter, previous international documents either said nothing, or too little on the issue of a person’s duties and obligations. Thus, the Banjul Charter “attempts to rectify this concern by enumerating those obligations imposed upon the individual” (Gittleman, 1982: 677).
In addition to this, the African Charter on Human and Peoples’ Rights offers additional rights now mentioned in the previous human rights documents. While conversations of cultural rights are evident elsewhere, the Banjul Charter makes these human rights a centerpiece in the overall rights based document. Furthermore, notions of environmental and also group rights were largely lacking in other regional human rights charters. The same could be said for UN human rights law at the time. The contributions from the African Charter place much needed emphasis on societal and environmental rights.
Moreover, the African Human Rights Charter clearly notes the importance of self-determination as a human right. This is important not only for rights such as free speech and political expression, but it also extents to include group rights, and not just in the traditional sense of a “sovereign state” (Gittleman, 1982). The African Charter on Human and Peoples’ Rights seems to be more specific in its reference to rights of groups that might be outside of the dominant political authority within the state.
African Commission on Human and Peoples’ Rights
The African Commission is a Committee formed in order to to ensure the the African Charter on Human and Peoples’ Rights are followed. There are eleven individuals chosen to the African Commission on Human and Peoples’ Rights, and they are chosen based on reputation and knowledge of human rights. It is the person’s government who nominates said person, and if they are elected, they serve a six-year term, although they are able to serve multiple terms (OHCHR, ND). The African Commission on Human and Peoples’ Rights meet twice a year, unless there is a need for additional meetings. The African Commission is funded by the African Union.
The African Commission has a specific mandate, which is noted in the Charter. As the OHCHR (ND) notes, “Article 45 of the Charter grants the Commission relatively broad powers to promote and ensure the protection of human and peoples’ rights. The Commission may collect documents; undertake studies and research; organize seminars and conferences; formulate principles on which domestic legislation may be based; cooperate with other African and international human rights institutions; interpret provisions of the Charter on the request of an OAU member State, the OAU itself, or an African organization recognized by the OAU; and perform any other task that may be entrusted to it by the OAU Assembly of Heads of State and Government. It also works to “[e]nsure the protection of human and peoples’ rights” as set forth in the Charter.”
As noted in Article 62, countries a party to the African Charter on Human and Peoples’ Rights are expected to write reports documenting the work that they are doing with regards to human rights. Then, the African Commission meets with country leaders to go over the reports. Non-governmental organizations also have the ability to offer comments to the reports submitted by states. State actors are also able to complain about human rights abuses through what are called “communications” where they file a complaint with the African Commission on Human Rights. Then, there are a series of criteria that need to be met in order for the African Commission will focus on the complaint. As the OHCHR (ND) notes:
- The communication must not be anonymous
- The communication must allege violations of rights that are protected by the Charter and must be compatible with the OAU Charter.
- The communication must not have manifestly political motivations or be written in “disparaging or insulting language”
- The communication should not be based exclusively on media reports, but reliance to some degree on the media is permissible
- The communication must be submitted “within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter.”
- The Commission will not admit cases that have been settled by the States involved in some other manner.
The African Commission on Human Rights calls for any complaints to be dealt with domestically before looking to the regional organization. But if the African Commission does decide to hear a case, they can then investigate the human rights communication issue (the charter gives them the authority to do so) (Mutua, 1999). It should be noted however that these communications are viewed outside of public meetings of the organization (although later developments have allowed the communications to be published if the OAU Assembly of Heads of State and Government approves (Mutua, 1999).
Thus, while there is something to celebrate with regards to the communications (as individuals can call out government actions on human rights) there are other issues with these communications. As Mutua (1999) notes, “despite signs of progress, the decisions referred to here, and others before them, are formulaic. They do not reference jurisprudence from national and international tribunals, nor do they fire the imagination. They are non-binding and attract little, if any, attention from governments and the human rights community. In the past, this lack of publicity could be attributed to the fact that the Commission prohibited the publication of its decisions” (348). Furthermore, it seems that the commission did not even want to actually push to hold states accountable. Rather, “the Commission has declined to take on an active role in adjudicating disputes and unequivocally condemning abusive behavior, preferring to see itself as a mediator rather than as a protector of human rights. In a number of its decisions, the Commission has itself stated that the “main goal of the communications procedure …is to initiate a positive dialogue, resulting in an amicable resolution between the complainant and the state concerned” (28).
For these various reasons, scholars have continued to levy critiques against the African Commission. For example, Udombana (2000), writing in 2000, said that the “[African] Commission stands as a toothless bulldog. The commission can bark…It was not, however, created to bite” (64). Again, while it does indeed have the ability to interpret the charter, issues surrounding real enforcement, and the private approach to rights abuses have been serious challenges to the African Commission. Furthermore, states gave little credit to the entity, were often unprepared when presenting reports (Mutua, 2005), and the African Commission itself was severely underfunded (Udombana, 2000).
African Court on Human and Peoples’ Rights
Following the passage of the Banjul Charter, states within the OAU also looked to establish a related human rights court, where, regional cases could be heard. It was in 1998 that the international organization agreed to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Mutua, 2000). The idea is for the African Court of Human Rights to be alongside the Banjul Charter, serving as another tool for the implementation of a regional human rights based system in Africa (Mutua, 2000).
Criticisms of the African Charter on Human and Peoples’ Rights
When thinking about the establishment of the African Charter on Human and Peoples’ Rights, we have to think about the states that signed and ratified the African Charter. While the unanimous African support for the charter looks great, what one has to remember is that many of the countries on board with the charter themselves are not offering real human rights protections. As Mutua (1999) noted, save for a few states, no other state that backed the Banjul Charter had anything close to a fledging democracy. Sure enough, the African human rights charter has not been able to be used in a way to sufficiently alter human rights conditions (Mutua, 1999).
The primary criticism of the Banjul Charter (and also the African Court of Human Rights) is not with the documents or structures in and of themselves, but rather, with the lack of sufficient enforcement mechanisms in place to ensure that human rights are actually protected. In fact, among the biggest concerns is the rather nonexistent punishments to states and others violating the Banjul Charter. What is even worse is that the African Charter on human rights actually has “clawback clauses” which, while not allowing states to suspend rights, actually give states the ability to veer away from protecting the human rights within the document by placing restrictions on the offering of said right/rights (Gittleman, 1982). For example, take the human right to Liberty. Within Article 6 of the African Charter, “Every individual shall have the right to liberty and to the security of his person.” In addition to this, “no one may be arbitrarily arrested or detained.” However, there is a clawback clause in the document that also says that “No one may be deprived of his freedom except for reasons and conditions previously laid down by law”. Since it is not clear want is meant by this, or what those conditions are, there is a concern that states can find an easy way to curtail the rights they grant (Gittleman, 1982).
Other critiques against the African Charter on Human and Peoples’ Rights are based on what little the charter says about the state reports that are to be submitted. As Mutua (1999) notes, “The Charter tersely provides that every two years, states shall submit a “report on the legislative or other measures taken with a view to giving effect to the rights and freedoms” enumerated in it. However, the Charter does not say to what body the reports are to be submitted, whether, how, and with what goal the reports should be evaluated, and what action should be taken after such evaluation. The Commission, not surprisingly, has filled in these gaps by borrowing heavily from other treaty bodies. Unfortunately, it has mimicked both the good and the bad in those bodies” (349). In addition, there was little buy in by the states, with few reports actually being submitted in the early years after the formation of the African Charter on Human and Peoples’ Rights (Mutua, 1999).
Protocol to the African Charter on Human and Peoples’ Rights
Even though the African Charter on Human and Peoples’ Rights has language that is inclusive of all individuals, there were reasons that an additional protocol specifically addressing women’s rights was needed. In addition, it was stated that even though the African Charter on Human and Peoples’ Rights offers human rights protections for all, there continues to be discrimination against women (Viljoen, 2000).
In addition, a very effective women’s rights movement in Africa continue to push for inclusion of a specific gender-based Protocol to the Banjul Charter. Again, while language was there to protect everyone, there were concerns that the way the language was stated put women’s rights with other rights, and also seemingly including the issue within issues of the family (Viljoen, 2000), and not in other matters the same way. In addition, while an international convention on women’s rights was already established (CEDAW), it can be argued that “Compared to CEDAW, the Protocol speaks in a clearer voice about issues of particular concern to African women, locates CEDAW in the African reality, and returns into the fold some casualties of quests for global consensus, resulting in the adoption of CEDAW” (Viljoen, 2000: 21). But along with this, it has also been argued that compared to CEDAW, the Protocol on Women’s Rights for the African Charter on Human and People’s Rights not only goes into the types of rights CEDAW talks about (but with more detail), but it also adds additional types of rights for women. One of noted advancements is on ensuring that the private sphere is an area where women’s rights are also to be protected. The Protocol on Women’s Rights even calls for “positive action” in this realm (Viljoen, 2000) (for a conversation on the types of rights that the Protocol add which are not directly within CEDAW, see Viljoen, 2000).
Thus, in year of July 2003, states within the OAU added and additional protocol to the African Charter on Human and Peoples’ Rights. This protocol was the African Womens’ Protocol. Legally, the African Womens’ Protocol to the African Charter on Human and Peoples’ Rights has weight because of the AU Constitutive Act, which signified the formation of the African Union (away from the OAU). Part of the issue for the formation of an additional Protocol to the African Human Rights Charter had to do with the AU’s approach to gender in its founding document. As Viljoen (2000) notes, “Although the AU Constitutive Act represents a significant departure from the 1963 OAU Charter–in particular by including the “promotion of gender equality” as one of its foundational principles–the omission of a similar provision from its list of objectives, and the use of the term Chairperson, soon thereafter, elicited the adoption of an amendment to the Constitutive Act” (13).
ACHPR (2016). History of the African Charter. African Commission on Human and Peoples’ Rights. Available Online: http://www.achpr.org/instruments/achpr/history/
Gittleman, R. (1982). The African Charter on Human and Peoples’ Rights: A Legal Analysis. Virginia Journal of International Law, Vol. 22, No. 4, pages 667-714. Available Online: http://www.corteidh.or.cr/tablas/4558.pdf
Mutua, M. (1999). The African Human Rights Court: A Two-Legged Stool? Human Rights Quarterly, Vol. 21, No. 2, pages 342-363.
Mutua, M. (2000). The African Human Rights System: A Critical Evaluation. Available Online: http://hdr.undp.org/sites/default/files/mutua.pdf
Mutua, M. (2005). The African Human Rights System: A Critical Evaluation, pages 1-39. Available Online: http://hdr.undp.org/sites/default/files/mutua.pdf
OHCHR (ND). Pamphlet No. 6. Minority Rights Under The African Charter On Human And Peoples’ Rights. Available Online: http://www.ohchr.org/Documents/Publications/GuideMinorities6en.pdf
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Viljoen, F. (2000). An Introduction to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Washington & Leee J.C.R. & Soc. Just, 11, pages 11-46.