International Protection of Human Rights

Chapter 8
The African Union System
Learning objectives
• Highlight the relativism of the African Union system.
• Describe the origin of the Organisation of African Unity and the African
Union and the regional protection of human rights.
• Introduce the African Commission and its work.
• Introduce the African Court and its work.
• Introduce the African Charter.
1. Is there an ‘African’ Approach to Rights?
• The notion that regional systems can be set up to protect human rights is not
uncontestable.
• Latin and North America, Europe, etc. But tensions clearly discernible in the lack of an ‘Asia’ wide system.
• The African continent represents the greatest variety of approaches and
challenges in an established system.
• There is the Arab-speaking and predominantly Muslim North. Very real differences between populations,
ethnic, racial and religious.
• Sub-Saharan Africa is enormously complex and intricate – a web of diverse societies, cultures, ethnicities,
races and faiths. Cultural practices vary incredibly.
• It is incorrect to speak of an ‘African approach’ to any issue as some commentators and politicians from
Africa have.
• There are simply approaches adopted by persons, communities and societies which hail from the African
continent.
2. From the OAU to the African Union
• The Organisation of African Unity (OAU) was established in 1963.
• The main objective was to bring to an end European colonialism in Africa
and end the apartheid systems of government in South Africa, South West
Africa (now Namibia) and Southern Rhodesia (now Zimbabwe).
• Human rights per se were not the OAU’s main focus; indeed it was ignoring
human rights abuses within African states that had achieved independence.
• Work on drafting a Charter began in 1979 and the African Charter on
Human and Peoples’ Rights came into force in October 1986.
• The OAU was succeeded by the African Union which came into existence in
2001.
3. The African Regional Human Rights Edifice
• The ‘African human rights edifice’ rests on a number of treaties. Four
key ones are:
• The Convention on Specific Aspects of the Refugee Problem in Africa
(came into force in 1974).
• The African Charter on Human and Peoples’ Rights (1986).
• The African Charter on the Rights and Welfare of the Child (1999).
• The Protocol on the Establishment of an African Court on Human and
Peoples’ Rights (the Protocol came into force in January 2004, and the
Court has now been established).
4. The African Commission on Human Rights.
• Established by Article 30 of the African Charter - composed of 11 members serving in personal and
independent capacities.
• Its main functions, (Article 45), are the promotion and protection of human and peoples’ rights in Africa and
the interpretation of the Charter.
• The Commission has numerous powers: ‘collect documents, undertake studies and research, …. organise
seminars and give its views or make recommendations to governments’.
• The Commission has also appointed a number of Special Rapporteurs whose role is to report on various
human rights areas, and their work has led to a number of normative developments.
• The Charter’s ‘communication procedure’ is a system by which an individual, NGO or group of individuals can
petition the Commission about human rights abuses.
• The African system is subsidiary and thus the state must be allowed to address the grievance and to find an
‘amicable solution’ between the complainant and the state.
• If the Commission fails to secure such a solution then it must determine a violation or not of the Charter and
make recommendations to the state and to the OAU on what remedies are required.
• The Commission’s final decisions are recommendations. Certain communications can now be referred to the
African Court.
5. The African Court
• The African Charter did not establish a Court, only a Commission.
• When the African Charter was adopted, the majority of African states were
despotic regimes.
• By 1994, the OAU Assembly (now the AU Assembly), felt it was appropriate to
establish a Court.
• A Protocol was agreed in 1998, entering into force in 2004. About half of AU States
are party to the Protocol.
• The experience of the African Court on Human and Peoples’ Rights has not to date
been a productive one.
• Some amending Protocols and documents relating to the African Court are not in
force, and thus it currently exists in a vacuum of institutional uncertainty.
6. The African Charter on Human and Peoples’ Rights (ACHPR)
• Is unique in its breadth and scope.
• Covers rights – life, slavery, liberty, association, family life, etc.
• People’s Rights -self determination; to enjoy natural resources; environment, etc.
• Includes Duties. Article 27:
• Every individual shall have duties towards his family and society, the state …. The rights and freedoms of
each individual shall be exercised with due regard to the rights of others, collective security, morality and
common interest.

• Makes clear that rights correlate with duties and they can only be understood by seeing the
individual holder of rights as a member of a community. Rights are qualified by virtue of this
membership. Philosophically distinct from the basis of rights possession in the UDHR, ICCPR, ECHR
etc.
Further reading
• C. Heyns and M. Kilander, ‘Africa’ in Moeckli, Shah and Sivakumuran
(eds), pp.441–57.
• The African Union has a website of limited use in English, French and
Arabic at [Link]
• The African Court on Human and Peoples’ Rights has a useful website
in various languages at [Link]
• The African Commission on Human and Peoples’ Rights has its own
website at [Link]