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Chapter 2: The African Human Rights System

The African Human Rights System emerged in response to the unique historical, cultural, and
social contexts of the African continent, particularly in the aftermath of colonialism and during
the wave of decolonization in the mid-20th century. Recognizing that Africa required a human
rights framework that reflected both universal principles and African values, the system was
established to promote and protect human rights across the continent.

The creation of the African Charter on Human and Peoples' Rights (also known as the Banjul
Charter) in 1981 marked the formal establishment of this system. The Charter is distinct for (a)
its inclusion of both individual and collective rights, and (b) duties, providing a holistic approach
to human rights that integrates civil, political, economic, social, and cultural dimensions.

Historical View: The African system has evolved significantly since its inception, adapting to
the changing landscape of human rights challenges in Africa.

Key milestones include:

● 1963: Establishment of the Organization of African Unity (OAU)

● 1981: Adoption of the African Charter on Human and Peoples' Rights (Banjul Charter)
● 1986: Entry into force of the African Charter
● 1987: Establishment of the African Commission on Human and Peoples' Rights
● 1990: Adoption of the African Charter on the Rights and Welfare of the Child
● 1998: Adoption of the Protocol to the African Charter on Human and Peoples' Rights on
the Establishment of an African Court on Human and Peoples' Rights
● 2001: Transformation of the OAU into the African Union (AU)
● 2003: Adoption of the Protocol to the African Charter on Human and Peoples' Rights on
the Rights of Women in Africa (Maputo Protocol)
● 2004: Inauguration of the African Court on Human and Peoples' Rights
● 2008: Adoption of the Protocol on the Statute of the African Court of Justice and Human
Rights
● 2014: Adoption of the Protocol on Amendments to the Protocol on the Statute of the
African Court of Justice and Human Rights (Malabo Protocol, expanding the court's
jurisdiction to include international crimes)

This historical progression reflects the continent's commitment to human rights protection and
the ongoing efforts to strengthen the system's effectiveness.
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2.1 Key Treaties and Legal Instruments

To understand the African Human Rights System, it is essential to explore the key treaties and
legal instruments that form its foundation. These documents not only establish the system’s
structures and institutions but also articulate the rights and obligations that govern the
relationship between states, individuals, and communities within Africa.

Each treaty was created in response to specific historical and social circumstances, reflecting the
evolving needs and aspirations of the African continent. Together, they provide a comprehensive
framework for the promotion and protection of human rights across Africa.

● The African Charter on Human and Peoples' Rights (1981): The foundational
document of the system, the Charter sets out a comprehensive list of rights and duties,
combining civil, political, economic, social, and cultural rights with collective rights and
the duties of states and individuals. It uniquely reflects African values by emphasizing
community rights, self-determination, and development.

● African Charter on the Rights and Welfare of the Child (1990): This charter focuses
on the specific needs and rights of children in Africa, addressing issues such as child
labor, education, and the impact of armed conflict on children. To this end, it establishes a
monitoring body, the African Committee of Experts on the Rights and Welfare of the
Child (ACERWC).

● Protocol to the African Charter on the Establishment of an African Court on

Human and Peoples' Rights (1998): This protocol establishes the African Court and
defines its jurisdiction, admissibility criteria, and procedural rules. It aims to enhance the
effectiveness of the African Charter by providing a judicial mechanism for human rights
protection.

● Protocol to the African Charter on the Rights of Women in Africa (Maputo

Protocol, 2003): This protocol is dedicated to promoting and protecting women's rights
across Africa, addressing gender-based violence, discrimination, reproductive health
rights, and political participation. It calls for the empowerment of women and the
elimination of harmful practices.

2.2 Key Rights Protected under the African Human Rights System

The rights protected under the African Human Rights System are defined by the treaties that
form its legal foundation. These rights encompass a wide range of civil, political, economic,
social, and cultural protections that address the diverse needs and challenges of African societies.
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The African Charter and its associated protocols emphasize both individual and collective rights,
reflecting a holistic approach to human rights that integrates personal freedoms with broader
community and developmental goals.

2.2.1 Civil and Political Rights: This category of rights includes such rights as the right to life,
freedom from torture and inhumane treatment, freedom of expression, freedom of assembly, and
the right to a fair trial.

Examples from the African Charter on Human and People's Rights:

● Right to equality and non-discrimination (Articles 2 and 3)

● Right to life (Article 4)
● Freedom from slavery, slave trade, torture, cruel, inhuman or degrading punishment and
treatment (Article 5)
● Right to liberty and security (Article 6)
● Right to fair trial encompassing several rights (Article 7)
● Freedom of conscience and religion (Article 8)
● Freedom of expression (Article 9)
● Freedom of association (Article 10)
● Freedom of assembly (Article 11)
● Freedom of movement along with other rights including related to asylum-seeking
(Article 12)
● Right to participate in government (Article 13)
● Right to property (Article 14)

Recent case law has further clarified the interpretation and application of some of these rights.
For example:

● On the Right to Nationality: In Anudo v. Tanzania (Application No. 012/2015), the

African Court ruled that arbitrary deprivation of nationality violates the right to dignity
and other human rights.
○ The right to Nationality is not explicitly in the main Charter but in the Anudo
case, the Court interpreted Articles 5 (right to dignity) and 15 (right to work) of
the African Charter as implicitly protecting the right to nationality. The Court held
that arbitrary deprivation of nationality violates these rights.
○ The right to nationality has also been recognized the African Charter on the
Rights and Welfare of the Child (1990) which explicitly recognizes the right to
nationality for children in Article 6. The Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol,
2003) also addresses women's nationality rights in Article 6(g) and (h).
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● On the Freedom of Expression: In Lohé Issa Konaté v. Burkina Faso (Application No.
004/2013), the Court held that criminal defamation laws violate the right to freedom of
expression.

● On the Right to Fair Trial: The case of Alex Thomas v. Tanzania (Application No.
005/2013) reaffirmed the importance of legal aid in ensuring the right to a fair trial.

These and other cases demonstrate the system's evolving jurisprudence and its role in
interpreting and applying human rights standards in the African context.

2.2.2 Economic, Social, and Cultural Rights: This category of rights encompasses rights like
the right to work, education, health, social security, and cultural participation.

Examples from the African Charter on Human and People's Rights:

● Right to work (Article 15)

● Right to health (Article 16)
● Right to education (Article 17)
● Right to family, non-discrimination, women and children's rights (Article 18)
● Right to a general satisfactory environment (Article 24)

The African Charter also protects collective or peoples' rights, such as:
● Equality of peoples and right to non-domination of a people by another (Article 19)
● Right to self-determination (Article 20)
● Right to freely dispose of natural resources (Article 21)
● Right to economic, social and cultural development (Article 22)
● Right to peace and security (Article 23)
● Right to satisfactory environment (Article 24)

Duties: Articles 27, 28, and 29.

Examples of their treatment in case law include:

● On the Right to health and a healthy environment: SERAC and Another v Nigeria
(Communication 155/96), the African Commission on Human and Peoples' Rights
addressed the Nigerian government's violation of the Ogoni people's rights to health and a
healthy environment.
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● On the Right to development: The African Charter pioneered the recognition of a right
to development as a fundamental human right, a unique feature distinguishing it from
other regional systems.

● On Collective Rights: The system recognizes the importance of collective rights and a
healthy environment and sustainable development. Cases like Centre for Minority Rights
Development (Kenya) and Minority Rights Group International on behalf of Endorois
Welfare Council v Kenya (Communication 276/2003) illustrate the protection of
collective rights, where the Commission recognized the rights of the Endorois community
to their ancestral lands.

● On Special Protections: The system provides additional protections for vulnerable

groups, including women, children, refugees, internally displaced persons, and people
with disabilities. Instruments like the Maputo Protocol and the African Charter on the
Rights and Welfare of the Child specifically address the rights of women and children.
The African Court on Human and Peoples' Rights has dealt with cases like APDF and
IHRDA v Mali (Application No. 046/2016), which addressed violations of women's rights
under the Maputo Protocol.

Note: Some rights, such as the right to self-determination (Article 20) and the right to dispose of
wealth and natural resources (Article 21), can be considered as overlapping both categories of
rights.

2.3 Institutional Setup of the African Human Rights System

2.3.1 Current Institutions

The effectiveness of the African Human Rights System relies heavily on the institutions
established to oversee its implementation and enforcement. These institutions are designed to
promote human rights, monitor state compliance, and provide mechanisms for individuals and
groups to seek redress when their rights are violated. Each institution plays a unique role in the
overall system, contributing to a comprehensive framework for human rights protection across
the continent.

● The African Commission on Human and Peoples' Rights (ACHPR): Established by

the main Charter, in 1987 and headquartered in Banjul in The Gambia, the Commission is
the primary human rights body in Africa. It monitors the implementation of the African
Charter, examines state reports, handles individual and inter-state communications, and
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promotes human rights awareness through advocacy, education, and investigations. The
Commission consists of 11 members elected by the African Union Assembly for a
six-year renewable term. Members serve in their personal capacity and are required to
have high moral character and competence in human rights.

○ Cases like SERAC v Nigeria highlight its role in addressing violations of

economic, social, and environmental rights. The Commission's independence is
maintained through remuneration by the African Union, and it issues non-binding
recommendations to member states.

● The African Court on Human and Peoples' Rights (AfCHPR): Established in 2004
and based in Arusha, Tanzania, the AfCHPR complements the protective mandate of the
ACHPR. The Court is composed of 11 judges, elected by the African Union Assembly
for a six-year term, renewable once. Judges are selected from a list of candidates
nominated by states parties to the Protocol, ensuring a balance of gender, regional
representation, and legal expertise.

○ Cases such as Tanganyika Law Society and The Legal and Human Rights Centre
v. Tanzania (Application No. 009/2011) exemplify the Court's role in interpreting
political rights. Judges' independence is ensured by the African Union through
remuneration, and the Court's judgments are binding and final.

● The African Committee of Experts on the Rights and Welfare of the Child
(ACERWC): Established under the African Charter on the Rights and Welfare of the
Child, the Committee monitors the implementation of the Charter by reviewing state
reports, handling complaints, and advocating for children's rights in Africa. The
Committee is composed of 11 members elected by the African Union for a five-year
term, renewable once. Members are chosen based on their expertise and experience in
child rights and are expected to act independently.

○ Cases such as Nubian Minors v Kenya (Decision No. 002/Com/002/2009),

showcase how the Committee addressed issues concerning the rights of children,
in this case, stateless children in Kenya.

2.3.2 The Proposed African Court of Justice and Human Rights

As previously alluded to, the African Union has been working towards the establishment of a
new court, the African Court of Justice and Human Rights (ACJHR).
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Background and Rationale: The proposal was first adopted in 2008 with the Protocol on the
Statute of the African Court of Justice and Human Rights. Its primary aim is to create a more
comprehensive and efficient continental judicial system that addresses both general affairs of the
African Union and human rights issues.

Key Features of the Proposed ACJHR:

● Expanded Jurisdiction: The ACJHR would have jurisdiction over:

○ General affairs of the African Union
○ Human and peoples' rights
○ International crimes (with the adoption of the Malabo Protocol in 2014)

● Structure: The court would consist of three sections:

○ General Affairs Section
○ Human and Peoples' Rights Section
○ International Criminal Law Section (if the Malabo Protocol is ratified)

● Composition: The court would have 16 judges, elected by the AU Assembly, ensuring
equitable regional and gender representation.

● Access: States, African intergovernmental organizations, and individuals (subject to state

declaration) would have access to the court.

Potential Impacts:

● Enhanced Efficiency: Consolidating multiple courts could streamline judicial processes

and reduce duplication of efforts.

● Broader Mandate: The inclusion of international crimes could strengthen Africa's

capacity to address serious violations.

● Resource Allocation: A single court might allow for more efficient use of limited
resources.

Challenges and Controversies:

● Ratification Process: The protocol requires 15 ratifications to enter into force. As of

2024, this threshold has not been met, delaying the court's establishment.
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● Immunity Clause: The Malabo Protocol includes a controversial clause granting

immunity to sitting heads of state and senior government officials, which has been
criticized by human rights advocates.

● Resource Concerns: There are questions about whether sufficient resources will be
available to support the expanded mandate of the new court.

● Transition Process: The merger raises questions about the handling of pending cases and
the continuity of jurisprudence from the existing courts.

Current Status and Future Prospects: As of 2024, the establishment of the ACJHR remains
pending due to insufficient ratifications. The international community and African civil society
continue to debate the merits and potential drawbacks of this proposed institutional change. The
creation of the ACJHR, if realized, would mark a significant evolution in the African Human
Rights System. It has the potential to strengthen the continent's judicial mechanisms, but its
success will depend on addressing the challenges and concerns raised by various stakeholders.

2.4 Procedures in the African Human Rights System

The African Human Rights System employs both promotional and protective mechanisms to
safeguard human rights across the continent. The system's procedures involve the African
Commission on Human and Peoples' Rights (ACHPR) and the African Court on Human and
Peoples' Rights (AfCHPR), each playing distinct roles in the enforcement and protection of
human rights.

1. Filing of Communications:
● Who can file: Individuals, groups, and NGOs can submit communications (complaints)
alleging human rights violations by a state party to the African Charter on Human and
Peoples' Rights.
● Exhaustion of local remedies: The complainant must first exhaust all available domestic
remedies unless doing so is impractical, unduly prolonged, or ineffective.

2. Admissibility Stage: The Commission assesses whether the communication meets certain
admissibility criteria, such as:
● Exhaustion of domestic remedies.
● Timeliness of submission (a reasonable time after local remedies are exhausted).
● The case must not be under consideration by another international mechanism (such as
the UN Human Rights Committee).
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If the communication meets these criteria, it moves to the merits stage.

3. Merits Stage: During this stage, the Commission examines the facts and legal arguments to
determine whether the state party has violated any provisions of the African Charter. The
Commission may conduct hearings, collect additional evidence, and request further information
from both the complainant and the state. The Commission may also conduct site visits or
investigations as part of this process.

4. Provisional Measures: If there is a risk of irreparable harm during the review process, the
Commission can issue provisional measures to prevent further violations while the
communication is still under consideration.

5. Recommendations and Follow-Up: If the Commission finds a violation, it issues

non-binding recommendations to the state party. Recommendations may include:
● Compensation or reparations for the victim.
● Legislative changes to prevent future violations.
● Other forms of restitution or specific actions by the state to rectify the situation.
The recommendations are forwarded to the African Union (AU) for consideration. The
Commission then follows up with the state on the implementation of the recommendations and
may request periodic updates on the actions taken.

6. Referral to the African Court on Human and Peoples' Rights: If a state fails to comply
with the Commission’s recommendations, the case may be referred to the African Court on
Human and Peoples' Rights for a binding judgment, provided that the state has accepted the
jurisdiction of the Court.

2.4.2 Procedures before the African Court on Human and Peoples' Rights (AfCHPR):

The African Court on Human and Peoples' Rights (AfCHPR) is the judicial body established to
complement the protective mandate of the African Commission on Human and Peoples' Rights.
Its role is to provide binding decisions on human rights violations and ensure the effective
implementation of the African Charter on Human and Peoples' Rights and other regional human
rights instruments.

1. Seizure of the Court (Filing of Applications):

● Who can file:

○ The African Commission on Human and Peoples' Rights.
○ States Parties to the African Charter.
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○ Individuals and NGOs may directly access the Court if the state involved has
made a special declaration under Article 34(6) of the Protocol establishing the
Court, allowing individual/NGO access.

● Subject matter: The application must concern alleged human rights violations under the
African Charter or other relevant human rights instruments.
● Applications: Should detail the facts of the case, the rights allegedly violated, and
supporting evidence.

2. Preliminary Examination: The Court first conducts a preliminary review to determine if it

has jurisdiction over the matter. This includes checking:
● Whether the state party has ratified the Protocol establishing the Court.
● If the state has accepted individual access to the Court (Article 34(6) declaration).
● Whether the application is admissible (e.g., exhaustion of local remedies, timeliness, and
other admissibility requirements similar to those for the Commission).
The Court may dismiss cases at this stage if jurisdictional or admissibility criteria are not met.

3. Admissibility of the Application: The Court examines whether the application meets certain
admissibility requirements, such as:
● Exhaustion of local remedies, unless such remedies are unduly prolonged or unavailable.
● Submission within a reasonable time after local remedies have been exhausted.
● The application must not be under consideration by another international body like the
UN Human Rights Committee.
If the application is deemed admissible, the Court proceeds to consider the merits of the case.

4. Merits Stage: The Court examines whether the facts presented constitute a violation of the
African Charter or any other applicable regional human rights instrument. Hearings may be held,
and both parties (the applicant and the state) can present written submissions and oral arguments.
The Court can also gather additional evidence or conduct its own investigations to ascertain the
facts.

5. Provisional Measures: At any point during the proceedings, the Court can order provisional
measures to prevent irreparable harm to the victim(s) while the case is still being heard. These
measures may include halting imminent executions, preventing the continuation of a harmful
policy, or ensuring protection of the complainants or their property.

6. Judgment: After considering the merits of the case, the Court issues a binding judgment. The
judgment can include:
● Declarations of violation.
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● Orders for compensation or reparations (including financial compensation, restitution,

rehabilitation, or guarantees of non-repetition).
● Recommendations for legislative or policy changes by the state party to prevent future
violations.
Judgments of the Court are final and cannot be appealed.

7. Follow-up and Implementation: Once the Court issues its judgment, it monitors the
implementation of its orders. States are expected to comply with the Court’s rulings, and the
African Union (AU) can be involved in monitoring compliance. The Court can request periodic
updates from the state party on the steps taken to comply with the judgment.

8. Referral of Non-Compliance to the African Union: If a state fails to comply with the
Court's judgement, the case can be referred to the African Union's Executive Council, which may
impose political pressure or sanctions to ensure compliance.

Additional Key Features of the Procedure:

● Public Hearings: The Court's hearings are typically held in public, although it can hold
closed hearings in exceptional cases.
● Amicus Curiae: The Court allows third-party interventions from organizations, experts,
or institutions interested in the case, even if they are not directly involved.
● Legal Assistance: The Court can provide legal assistance to applicants who are indigent,
to ensure access to justice.
● Binding Nature of Judgments: Unlike the African Commission's recommendations, the
African Court’s judgments are legally binding on the state parties involved.

2.5 Enforcement Mechanisms

Enforcement mechanisms are critical to ensuring that the decisions and recommendations of the
African Human Rights System are implemented effectively. The system faces several challenges,
including political resistance, limited resources, and diverse legal systems across member states.

● Compliance with Commission Recommendations: The Commission relies on dialogue,

persuasion, and advocacy to encourage states to comply with its non-binding
recommendations. Regular engagement with state parties, civil society, and other
stakeholders is essential for promoting compliance. For example, in the Endorois case,
the Commission has worked with local and international actors to encourage Kenya to
comply with its recommendations.
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● Implementation of Court Judgments: The Court’s decisions are binding on states that
have ratified its Protocol. However, enforcement remains inconsistent, with states
sometimes failing to fully implement the Court’s rulings, as seen in cases like Mtikila v
Tanzania, where compliance was delayed. The Court relies on the African Union and its
organs, such as the Executive Council, to monitor and encourage compliance.

● Role of the African Union: The African Union, through its various organs, plays a
supporting role in promoting compliance with human rights standards. It can exert
political and diplomatic pressure on states to adhere to their human rights obligations.
The African Union’s involvement has been crucial in cases like APDF and IHRDA v
Mali, where it played a role in ensuring that Mali adhered to its obligations under the
Maputo Protocol.

● National Implementation: The effectiveness of the African Human Rights System

heavily depends on the implementation of decisions at the national level. This involves:
○ Domestic courts applying regional human rights standards in their judgments
○ National human rights institutions monitoring compliance and advocating for
implementation
○ Legislative reforms to align national laws with regional human rights standards
○ Executive actions to implement specific recommendations or judgments

● Role of Civil Society: Civil society organizations (CSOs) play a crucial role in
enforcement by:
○ Monitoring state compliance with decisions and recommendations
○ Advocating for implementation at national and regional levels
○ Providing legal aid and support to victims seeking enforcement of decisions
○ Raising awareness about the African Human Rights System and its decisions

● Follow-up Mechanisms: Both the Commission and the Court have developed follow-up
procedures to monitor the implementation of their decisions. This includes requesting
periodic reports from states on compliance and conducting follow-up missions to assess
progress.

Despite these mechanisms, enforcement remains a significant challenge for the African Human
Rights System. Strengthening these mechanisms and fostering greater political will among
member states are crucial for improving the system's effectiveness.
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2.6 Subregional Comparatives in Africa

2.6.1 Subregional Systems: Several subregional bodies contribute to human rights protection in
Africa, providing additional venues for redress. These bodies operate within specific subregions
and have distinct mandates, jurisdictions, and effectiveness levels.

● The East African Court of Justice (EACJ): Established under the Treaty for the
Establishment of the East African Community (EAC), the EACJ is based in Arusha,
Tanzania. While its primary mandate is to ensure adherence to the EAC Treaty, the EACJ
has jurisdiction over human rights cases if they involve violations of the EAC Treaty. The
Katabazi case (James Katabazi and 21 Others v. Secretary-General of the East African
Community) demonstrated the Court's willingness to interpret its mandate broadly to
address issues of human rights and rule of law.

● The COMESA Court of Justice: The Court of Justice of the Common Market for
Eastern and Southern Africa (COMESA), based in Khartoum, Sudan, primarily deals
with trade and economic disputes but also has jurisdiction over human rights matters that
affect trade, integration, and market operations. The Court has yet to develop a significant
body of human rights jurisprudence.

● The ECOWAS Community Court of Justice: Based in Abuja, Nigeria, the ECOWAS
Court is notable for its human rights mandate. It has addressed several critical human
rights cases, such as Hadijatou Mani Koraou v. Niger, which dealt with slavery and
forced labor. The Court allowed individuals direct access, setting a precedent for human
rights enforcement in West Africa.

● The Southern African Development Community (SADC) Tribunal: Initially based in

Windhoek, Namibia, the SADC Tribunal handled human rights cases until its suspension
in 2010 following controversial rulings such as Mike Campbell (Pvt) Ltd v Republic of
Zimbabwe, which challenged land reform policies in Zimbabwe. Efforts to re-establish
the Tribunal continue, but it remains inactive.

● The Arab Maghreb Union (AMU) Court of Justice: Although established under the
AMU Treaty, this Court remains inactive. Its potential role in North Africa could become
relevant if it becomes operational, especially in addressing regional human rights issues.

● The Economic Community of Central African States (ECCAS) Court of Justice: The
ECCAS Court, established under the ECCAS Treaty, has a limited role in human rights
matters but could potentially expand its mandate as regional integration efforts progress.
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2.6.2 Comparative Analysis of the Continental System and Subregional Bodies

Comparing the African Human Rights System with its subregional counterparts highlights their
respective strengths and challenges. Each body has a unique mandate, scope, and jurisdiction that
defines its role in promoting and protecting human rights.

● Mandates and Jurisdictions:

○ The African Court and Commission have a broad mandate covering all human
rights issues across the continent.
○ Subregional courts like the EACJ and COMESA Court have limited jurisdiction
over human rights, focusing primarily on economic and trade-related matters.
○ The ECOWAS Court stands out among subregional bodies for its expansive
human rights mandate and direct access for individuals.

● Accessibility and Individual Access:

○ The African Court allows individual petitions only against states that have made a
special declaration.
○ The ECOWAS Court and the East African Court of Justice are more accessible,
allowing direct individual access without exhausting domestic remedies.
○ The African Commission is relatively more accessible, accepting communications
from individuals and NGOs against all state parties to the African Charter.

● Enforcement and Compliance:

○ The African Court's judgments are binding, but enforcement relies on political
will of member states and AU organs.
○ Subregional courts may have higher compliance rates due to their economic
integration mandates, which can provide additional leverage for enforcement.
○ The African Commission's recommendations are non-binding, which can limit
their enforceability.

● Specialization and Expertise:

○ The African system has developed extensive jurisprudence on a wide range of
human rights issues.
○ Subregional courts may have more specialized expertise in certain areas, such as
trade-related rights or regional integration issues.

● Relationship and Coordination:

○ There is potential for forum shopping between regional and subregional
mechanisms.
○ Efforts are needed to enhance coordination and avoid conflicting jurisprudence.
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○ Subregional bodies can complement the African system by providing additional

avenues for justice and addressing localized issues.

● Resources and Capacity:

○ All systems face resource constraints, but subregional bodies may benefit from
being part of economic integration frameworks.
○ The African system has a broader mandate but often faces significant resource
limitations.

● Enhancing cooperation between the continental and subregional mechanisms could lead
to a more robust and comprehensive human rights protection system in Africa. This could
involve regular dialogues, information sharing, and potentially developing a formal
framework for cooperation and referral of cases.

2.7 The African Human Rights System and the International Framework

The African Human Rights System operates within the broader context of the international
human rights framework. Its relationship with global mechanisms, particularly those of the
United Nations, is characterized by both complementarity and occasional tension:

● Complementarity with UN Mechanisms:

○ The African Charter and other regional instruments often reference and
incorporate standards from UN treaties.
○ The African Commission and UN treaty bodies sometimes cross-reference each
other's decisions and recommendations.
○ Collaboration occurs in areas such as joint promotional activities and information
sharing.

● Distinct African Approaches:

○ The African system emphasizes collective rights and duties, reflecting African
cultural values.
○ It has developed unique concepts like the right to development and the right to a
satisfactory environment.

● Interaction with the UN Human Rights Council:

○ African states participate in the Universal Periodic Review (UPR) process, which
often references regional human rights standards and decisions.
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○ Special Procedures of the UN Human Rights Council sometimes collaborate with

African regional mechanisms on country visits or thematic issues.

● Challenges in Coordination:
○ There can be duplication of efforts between regional and UN mechanisms.
○ Occasionally, conflicting interpretations of rights may arise between regional and
global bodies.

● Capacity Building and Technical Assistance:

○ UN bodies often provide technical assistance and capacity-building support to
strengthen the African Human Rights System.

● Influence on International Jurisprudence:

○ Decisions from the African system have contributed to the development of
international human rights law, particularly in areas like indigenous rights and
socio-economic rights.

Enhancing synergies between the African and international human rights systems while
maintaining the African system's unique characteristics remains an ongoing process. This
interaction contributes to the progressive development of human rights standards both regionally
and globally.

2.8 The Role of Civil Society in the African Human Rights System

Civil society organizations (CSOs) play a crucial role in the functioning and effectiveness of the
African Human Rights System:

● Advocacy and Awareness Raising:

○ CSOs conduct public education campaigns about human rights and the African
Human Rights System.
○ They lobby governments to ratify human rights instruments and implement
decisions.

● Case Litigation:
○ Many landmark cases before the Commission and Court have been brought or
supported by CSOs.
○ They provide legal representation to victims who may lack resources to access the
system.
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● Monitoring and Reporting:

○ CSOs submit shadow reports to complement or challenge state reports to the
African Commission.
○ They monitor and report on human rights violations across the continent.

● Capacity Building:
○ CSOs provide training to lawyers, activists, and national human rights institutions
on engaging with the African Human Rights System.

● Research and Documentation:

○ CSOs conduct research on human rights issues, contributing to the development
of human rights jurisprudence in Africa.

● Participation in African Commission Sessions:

○ CSOs with observer status participate in the Commission's public sessions,
making statements and organizing side events.

● Implementation of Decisions:
○ CSOs play a crucial role in following up on the implementation of decisions and
recommendations at the national level.

● Network Building:
○ CSOs facilitate collaboration between various stakeholders, including between
national, sub-regional, and regional human rights bodies.

The engagement of civil society has been instrumental in strengthening the African Human
Rights System, though challenges remain in terms of shrinking civic space in some countries and
limited resources for sustained engagement.

2.9 Achievements, Challenges and Future Directions for the African Human Rights System

The African Human Rights System has made significant strides since its inception, contributing
to the promotion and protection of human rights across the continent. However, it continues to
face numerous challenges that require ongoing attention and reform efforts.

● Key achievements include:

○ Development of a robust body of human rights jurisprudence
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○ Increased awareness of human rights among African populations

○ Provision of redress for victims of human rights violations in numerous cases
○ Influence on national laws and policies to align with regional human rights
standards

● Challenges: Despite its achievements, the African Human Rights System faces several
significant challenges that still impact its effectiveness and reach.

○ Limited Resources: Both the Commission and the Court struggle with inadequate
funding and staffing, which affects their ability to handle cases efficiently and
conduct extensive promotional activities.

○ Political Interference: Some states have shown resistance to the system's

decisions, particularly when they involve sensitive political issues. This can lead
to non-compliance and undermines the system's authority.

○ Low Ratification Rates: Not all African states have ratified key protocols, such
as the one establishing the African Court. This limits the Court's jurisdiction and
the system's overall effectiveness.

○ Limited Individual Access: Only a small number of countries have made the
declaration allowing individual access to the Court, significantly restricting its
reach.

○ Slow Pace of Proceedings: Both the Commission and Court often face backlogs,
leading to delays in justice that can span several years.

○ Weak Enforcement Mechanisms: The system lacks strong enforcement tools,

relying heavily on state cooperation and political will for the implementation of
decisions.

○ Overlapping Jurisdictions: The existence of multiple regional and sub-regional

human rights mechanisms can lead to forum shopping and potentially conflicting
decisions.

○ Limited Public Awareness: Many African citizens are unaware of the existence
and functions of the regional human rights system, limiting its utilization and
impact.
 19

○ Cultural and Legal Diversity: The vast cultural and legal diversity across the
continent can pose challenges in applying uniform human rights standards.

○ Ongoing Conflicts and Political Instability: Many parts of Africa continue to

face conflicts and political instability, which can hinder the effective
implementation of human rights standards.

Addressing these challenges requires concerted efforts from member states, the African Union,
civil society organizations, and the international community to strengthen the system and
enhance its effectiveness in protecting human rights across the continent.

● Future Directions: Looking to the future, several key areas require focus:

○ Strengthening Enforcement Mechanisms: Developing more effective tools for

ensuring compliance with decisions and recommendations.

○ Enhancing Accessibility: Encouraging more states to allow individual access to

the Court and simplifying procedures for bringing cases.

○ Capacity Building: Investing in the capacity of national judiciaries and human

rights institutions to apply regional standards.

○ Addressing New Challenges: Developing frameworks to address emerging

human rights issues such as climate change, digital rights, and terrorism.

○ Harmonization: Improving coordination between regional, sub-regional, and

national human rights mechanisms to ensure consistency and avoid duplication.

○ Resource Mobilization: Securing sustainable funding to enhance the operational

capacity of the Commission and Court.

○ Expanding Ratification: Encouraging wider ratification of key protocols,

particularly those relating to the Court's jurisdiction.

○ Enhancing Cooperation: Strengthening relationships with the UN system and

other regional human rights mechanisms for knowledge sharing and mutual
support.
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The proposed African Court of Justice and Human Rights represents a potential significant
development. If realized, this could streamline the continental judicial system and potentially
strengthen its authority and reach.

In conclusion, while the African Human Rights System has made important contributions to
human rights protection in Africa, its future effectiveness will depend on addressing current
challenges, adapting to new realities, and maintaining a balance between universal human rights
principles and African cultural values. The continued engagement of states, civil society, and the
international community will be crucial in realizing the system's full potential for protecting and
promoting human rights across the African continent.

Practice Questions1*

1. Describe the key features of the proposed African Court of Justice and Human
Rights. How does it differ from the current African Court on Human and Peoples'
Rights?
2. Explain the relationship between the African Human Rights System and the
broader international human rights framework. How do they complement and
potentially conflict with each other?
3. Analyze the role of civil society organizations in the African Human Rights System.
Provide specific examples of how they contribute to the system's effectiveness.
4. Compare and contrast the mandates and jurisdictions of the African Court on
Human and Peoples' Rights and the ECOWAS Community Court of Justice.
5. Discuss the main challenges facing the African Human Rights System. How might
these challenges be addressed to improve the system's effectiveness?
6. Explain the procedure for bringing a case before the African Commission on
Human and Peoples' Rights. What are the key stages in this process?
7. Analyze the significance of the case "Centre for Minority Rights Development
(Kenya) and Minority Rights Group International on behalf of Endorois Welfare
Council v Kenya" for the protection of collective rights in Africa.
8. Discuss the enforcement mechanisms available in the African Human Rights
System. How effective are these mechanisms in ensuring
9. Explain the concept of 'exhaustion of local remedies' in the context of the African
Human Rights System. Why is this principle important?

1
Pay keen attention to this chapter: The main question in the exam (25 Marks) will be on the African
System.
 21

10. Evaluate the strengths and weaknesses of having multiple human rights bodies at
the regional and sub-regional levels in Africa. How might these bodies be better
coordinated?