Overview of the

African system for

the protection of
Human Rights

By
Professor A. W.
Chanda
 INSTRUMENTS

 OAU Convention Governing the Specific

Aspects of Refugee Problems in Africa 1969.
 African Charter of Popular Participation in
Development and Transformation 1990.
 African Charter on the Rights and Welfare of
the Child 1990.
 African Convention on the Conservation of
Nature and Natural Resources 1968.
 Bamako Convention on the Ban of the Import into
Africa and the Control of Transboundary Movement
and Management of Hazardous Wastes within
Africa, 1991.

 The African Charter on Human and People’s Rights,

1981.

 Protocol on the Rights of Women in Africa, 2003.

 Protocol on the Establishment of an African Court on

Human and Peoples Rights, 1998

 Constitutive Act of the African Union

 NEPAD
 The African Charter On
Human Rights And Peoples
Rights
 Operates within the framework of the
African Union.
 Adopted by the OAU Heads of State
and Government on 27th June 1981.
 Entered into force on 21st October
1986.
 All 53 African States are members
 BACKGROUND
 African Charter: marks a departure from
previous OAU practice, which had stressed
the principle of non-interference in the
internal affairs of member states
enshrined in Article 3 of the OAU Charter.
 In the past that principle had been used to
prevent the OAU from dealing with gross
abuses of human rights by African States.
E.g. Uganda under Idi Amin and Obote;
Equatorial Guinea under Macias Nguema;
Central African Republic under Emperor
Jean Bedel Bokassa, Ethiopia under
Colonel Mengistu Haile Mariam; Malawi
under Hastings Kamuzu Banda, Zaire
under Mobutu Seseseko, etc.
 DISTINCTIVE FEATURES OF
THE AFRICAN CHARTER

 Reflects African traditions and the

influence of UN human rights
instruments.

 Guarantees both civil and political

rights on one hand, and economic,
social and cultural rights, on the
other hand.
 Civil and Political Rights
(Articles 3 – 14)
 equality before the law as well as equal
protection of the law
 respect for the life and integrity of the
individual
 respect for human dignity and freedom
from exploitation, torture, cruel, inhuman or
degrading punishment, and slavery
 liberty and security of person
 fair trial
 freedom of conscience and religion
 freedom of expression and the right to
receive information
 freedom of association and assembly
 freedom of movement and residence
 right to asylum in other countries (mass
expulsions of non-nationals prohibited)
 right to participate freely in the
government, including having equal
access to the public service, equal access
to public property and services
 right to property
 Economic, Social And
Cultural Rights (Art. 15-
 18)
Right to work under equitable and satisfactory
conditions including equal pay for equal work
 To enjoy the best attainable state of physical

and mental health

 Education and participation in cultural life of

the community
 Protection of the family. The State “ shall

ensure the elimination of every discrimination

against women and also ensure the protection
of the rights of the woman and the child as
stipulated in international declarations and
conventions”
 Protection of the aged and disabled
C. Guarantees of Peoples
Rights (Articles 19-24)
 Equality and existence
 Self-determination

 Freely to dispose of their wealth and

natural resources
 Right to development

 Right to national and international peace

and security, as well as solidarity

 Right to a general satisfactory

environment
 The African Charter does not
define “People”

 Katangese Peoples Congress v.

Zaire
 D. Clawback Clauses
 The Charter is drafted in a form that
permits the government to impose
very extensive restrictions.
 Enjoyment of several rights is made
subject to national law
 Freedom of movement and
residence: “provided he abides by
the law” (Art. 12).
 Freedom of conscience, the profession and
religion: “subject to law and order” (Art. 8);

 Freedom of expression: “within the law”

(Art. 9(2))

 Freedom of association: “provided he

abides by the law” (art. 10(1))

 Freedom of assembly: “subject to

necessary restrictions provided for by law”
(Art. 11).
 By virtue of these very ambiguous
and limitlessly broad standards,
clawback clauses do not provide the
external control over state behaviour
that derogation clauses in other
Conventions provide.
 In other conventions derogations
must meet certain standards
 Prescribed by law
 Necessary for specified interest (e.g. rights of

others, national security, public morality, etc)

 reasonably justifiable in a democratic society
 The African Charter fails to
prescribe the standards the law
imposing the restrictions must
meet, allowing states to violate
the guaranteed rights provided
they do so under colour of law
E. Immediate and Absolute
obligations

 In terms of the nature of state

obligations, there is no distinction
made among the various generations
of rights.
 Thus all the rights must be
immediately implemented regardless
of availability of resources
 F. Duties (articles 27 –
29)
 The Charter prescribes duties of the
individual toward the family, the
community, the state and the
international community.
 Individual rights must be exercised
with due regard to the rights of
others, collective security, morality
and common interest.
The Duties:-

 to respect and consider his fellow beings

without discrimination, and to maintain
relations aimed at promoting, safeguarding
and reinforcing mutual respect and
tolerance
 not to compromise the security of the state
 to preserve and enhance social and
national solidarity
 to preserve and strengthen national
independence and the territorial integrity of
the country and to contribute to its defence
 to promote African unity
 to pay taxes
 to preserve and strengthen positive
African cultural values
 to preserve the harmonious development
of the family and to work for the cohesion
and respect of the family
 to respect his parents and maintain them
in case of need
 to serve his national community by placing
his physical and intellectual abilities at its
service.
Type of Duties
 duties which can be characterized as
correlative to rights, such as the
obvious duties of States that are
correlative (corresponding) to
individual rights, e.g. not to torture

 restrictions on the enjoyment of

rights disguised as duties
African Charter and Duties
 The Charter goes beyond the conventional
notion that duties are correlative
(corresponding) to individual rights, e.g. not to
torture
 It goes beyond declaring similar correlative
duties of individuals. E.g. the duty not to
invade another individual’s right to personal
security
 The Charter differs in defining duties that are
not simply the “other side” of individual rights,
and that run from individuals to the State as
well as to different types of groups of
communities within (or perhaps transcending)
that State.
 Depending on their interpretation and
application, duties and ideals of solidarity may
impinge in clear and serious ways on the
Charter’s definition of rights themselves.
 The duties are of such a breadth and so
ambiguous in their connotations that a regime
of serious enforcement without some degree
of prior elaboration is difficult to imagine
 There is a danger that a government can use
the duties as an excuse to impose severe
limitations on the enjoyment of individual
rights.
 STATE OBLIGATIONS AND
MEASURES OF IMPLEMENTATION
 To recognize the rights, duties and
freedoms enshrined in the Charter and
undertake to adopt legislative or other
measures to give effect to them (Art. 1).
 To promote and ensure through teaching,
education and publication, the respect of
rights and freedoms (Art. 25)
 To guarantee the independence of the
courts (Art. 26)
 To allow the establishment and
improvement of appropriate national
institutions entrusted with the promotion
and protection of human rights (Art. 26).
 THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS
(Art. 30, 31, 32, 33)
 Comprises 11 members elected by AU Heads
of State and Government from amongst
African personalities of the highest
reputation, known for their high morality,
integrity, impartiality and competence in
matters of human and peoples’ rights.

 Members serve in their personal capacit

 Tenure: six years but eligible for re-election

 MANDATE OF THE COMMISSION
(Art. 45)

 Promotion of human rights

 Protection of Human Rights
 Interpretation
 Any other tasks which may be
entrusted to it by the OAU Assembly
of Heads of State and Government
 PROMOTIONAL FUNCTIONS
(Art. 45)
 Collecting documents
 Undertaking studies
 Conferences, seminars, symposia
 Disseminating information
 Formulating principles and rules aimed at
solving legal problems relating to human
and peoples rights upon which African
Governments may base their legislation
 Co-operation with other African and
International institutions
PROTECTION FUNCTIONS (Art.
46 – 54)

 Inter-state communications

 Other communications
 INTER-STATE COMMUNICATIONS

(1) Negotiation-Communication
 A State party communicates directly

with a State party accused of violating

human rights.
 Bilateral negotiations ensue

 If there is no negotiated settlement

either State may submit the matter to

the Commission within three months
 (2) Complaint Communication
 Where one State complains to the Commission
against another State the Commission must be
satisfied that all local remedies, if they exist, have
been exhausted
 Commission may conduct an oral hearing (both States
may be represented)
 Commission must first try to promote an amicable
solution
 If no friendly settlement is possible the Commission
prepares “a report stating the facts and its findings”
 Copies of the Report are sent to the States concerned
and the AU Assembly of H of S and Gv’t to which the
Commission may make “such recommendations as it
deems useful
 Report and all other measures must remain
confidential unless otherwise decided by the
Assembly
 OTHER COMMUNICATIONS (ART.
55 – 59)
 Individuals, NGOs or other groups may submit
communications to the Commission against
States parties
 Criteria for admissibility (Art. 55)
 If a communication relates solely to individual
violations of human rights, the Commission has
no power to take any action
 If the Commission finds that one or more
communications clearly reveal the “existence of a
series of serious or massive violations of human
and peoples rights” the Commission draws the
“special cases” to the attention of the Assembly
 The Commission may “undertake an
in-depth study of these cases and
make a factual report, accompanied
by its findings and recommendations”
only upon the request of the Assembly
 Emergency situation: The AU
chairman may authorize the
Commission to investigate
 Confidentiality: All matters
pertaining to the communication are
confidential
 REVIEW OF PERIODIC REPORTS
(ART.62)
 States are required to submit, every two
years, a report “on the legislative or other
measures taken with a view to giving effect
to the rights recognized and guaranteed” by
the Charter
 Detailed guidelines drawn up by the
Commission
 Problems
 Late submission of reports
 Brief reports
 Non-submission of reports
 Inadequate time for review of reports
 INTERPRETATIVE AND OTHER
FUNCTIONS (ART. 45)
 The Commission may interpret the provisions of the Charter
at the request of State parties, OAU Institutions or any
other African Organisation recognized by the OAU
 The Commission can draw inspiration from-

 The UN and OAU Charters

 The Universal Declaration on Human Rights 1948
 African Human Rights Instruments

 Other instruments adopted by the UN and by African

countries in the field of human and peoples’ rights as
well as from various instruments adopted within the
specialized Agencies of the UN of which the parties to
the present Charter are members” (Art. 60)
 The Commission may “take into
consideration, as subsidiary
measures to determine the
principles of law,” various other
human rights agreements to which AU
member States are parties, together
with “African practices consistent
with international norms on human
and peoples rights, customs
generally accepted as law, general
principles of law recognized by
African states as well as legal
precedents” (Art. 61)
 Thus, in interpreting and applying the
African Charter, the Commission has a
broad mandate to draw on a vast body
of law which articles 60 and 61
incorporate by reference into the
African Charter.
 The Commission is granted an
invaluable tool capable of ensuring
that the interpretation of the Charter
will keep up with the growth of general
international law of human and
peoples rights.
 PROTOCOL TO THE AFRICAN CHARTER
ON HUMAN AND PEOPLES’ RIGHTS ON
THE ESTABLISHMENT OF AN AFRICAN
COURT OF HUMAN AND PEOPLES’
RIGHTS

 Adopted by OAU Assembly of Heads of

State and Government in 1998
 Purpose: to establish an African Court of
Human Rights empowered to issue binding
decisions
 Now in force but not operational
RELATIONSHIP WITH THE AFRICAN
COMMISSION (ART. 2)
 To complement the protective mandate of the
African Commission

Jurisdiction
Contentious (Art. 3)
 To adjudicate all cases and disputes submitted to
it concerning-
• The interpretation and application of the African Charter
• The Protocol establishing the Court
• Any other relevant Human Rights Instrument ratified by
the States concerned
 Advisory Opinions (Art.
4)
 To provide advisory opinions on any
legal matter relating to the Charter
or other applicable African Human
rights Instrument at the request of-
 The African Union
 African Union Organs
 Any African organization recognized
by the African Union
 WHO IS ENTITLED TO SUBMIT
CASES? (ART. 5)

Art. 5(1):
n The State Party which has lodged a
complainant to the Commission
 The State Party against whom the
complaint has been lodged at the
Commission
 The State party whose citizen is a victim of
human rights violation
 African inter-governmental Organisations
Art. 5(2):

 A State party which has an interest

in a case may apply to be permitted
to join
Art. 5(3):
 The court may entitle NGOs with
observer status before the Commission
and individuals to institute cases
directly before it provided the State
party has made a declaration
accepting the competence of the
Court to receive petitions from
individuals and NGOs under art. 34(6).
Sources of Law (Art. 7)

 African Charter on Human and

Peoples Rights (ACHPR)

 Any other relevant human rights

instruments ratified by the States
concerned
ADMISSIBILITY OF CASES (ART.
6)
 The Court may request the opinion of the
Commission
 The Court should take into account
admissibility requirements laid down in art.
56 of the Charter,
 E.g. exhaustion of domestic remedies, non-
insulting language, identify complainant, timely
submission,not already settled, compatibility with
the ACHPR or AU Charter, etc
 The Court may consider cases or transfer
them to the Commission
 The matter must be submitted to it within
three months of the Commission’s decision
 COMPOSITION (ART. 17)
 11 Judges, nationals of AU Member States,
elected by the Assembly of Heads of State
of the AU by secret ballot, upon nomination
by the States Parties.
 There must be adequate gender
representation and all the main regions of
Africa and their principal legal traditions
must be represented
 Must be jurists of “high moral character and
of recognized practical, judicial or academic
competence and experience in the field of
human and peoples’ rights”
 Independence of judges: guaranteed
 Term of Office: 6 years subject to re-
election (once)
 Quorum: 7 judges
 All judges except the President: part-
time
POWERS OF THE COURT (ART.
27)
 Issues provisional measures in cases
of extreme gravity and urgency

 Can make appropriate orders to

remedy violation of human rights,
including the payment of fair
compensation or reparation
JUDGEMENTS AND EXECUTION
(ART. 27 – 29)
 Final, not subject to appeal
 May review its decision in the light of new
evidence
 Dissenting and concurring opinions
permitted
 Must be rendered within 90 days of having
completed its deliberations
 To be read in open court, and with reasons
 Parties must be notified of the judgment
and it shall be transmitted to the
parties, AU Members, the Commission
and the Council of Ministers
 States parties “undertake to comply
with the judgment in any case to which
they are parties within the time
stipulated by the Court and to
guarantee its execution”.
 Council of Ministers: monitors its
execution on behalf of the Assembly.
THE END