Human Rights - African Human Rights System
INTRODUCTION
The
African human rights system is a vital framework for promoting and protecting
human rights on the continent. Established through the African Charter on Human
and Peoples' Rights, this system has been instrumental in advancing human
dignity, justice and equality in Africa. As a regional mechanism, it
complements global human rights efforts while addressing the unique challenges
and contexts of African countries. This article provides an overview of the
African human rights system, including its statutory provisions and case law applications.
By examining the key institutions, instruments and decisions that shape this
system, we can gain a deeper understanding of its role in promoting human
rights in Africa and its potential for continued growth and impact.
From
a historical stand point, Africa has been seen to have experienced the most
Human Rights violations and deprivations due to the colonization of the African
people by their colonial masters.
Africans
waged protracted trouble for political independence, sacrificing thousands lives
in the process. The decolonization process gained momentum in the 1950s and mid
1960s with some colonies achieving independence during this process including
Zambia in 1964[1].
Other
countries such as Mozambique, Angola and Zimbabwe followed in 1980. After
prolonged liberation wars[2].
The international community’s persistent pressure finally led to Namibia’s
independence in 1990[3],
and the dismantling of apartheid in South Africa in 1994[4]
marking a significant milestone in the continents quest for self determination.
On
26 May 1963, the Organization of African Unity (OAU) was founded as a regional
intergovernmental organization with the aim of promoting African solidarity,
unity and cooperation[5].
In Article 2 of the OAU Charter, the
organization’s objectives included defending the sovereignty and territorial
integrity of its member states ensuring their independence and eradicating all
forms of colonialism in the African continent[6].
Despite its noble goals, the OAU faced criticism for 36 years, with many viewing
it as ineffective in addressing social and political challenges faced in the
continent[7].
Critics have argued that the organization was toothless and failed to hold
member states accountable for human rights violation, instead serving as a
platform for dictators who disregarded human rights in their own countries[8]
In
September 1999, the Fourth Extraordinary Session of the Assembly of Heads of
State and Government of the Organization of African Unity (OAU) convened in
Libya, resolving to establish the African Union (AU) to strengthen continental
organizations and enhance their effectiveness in addressing social, political
and economic developments in Africa and globally[9].
This decision paved the way for the 36th Extraordinary Session of the Assembly
of Heads of State and Government held from 10 to 12 July 2000 in Lomé Togo,
which formally adopted the Constitutive Act of the African Union[10].
The Act entered into force on 26 May 2001, marking the dissolution of the OAU
and the birth of the AU[11].
According
to the Constitutive Act, the AU aims to promote greater unity and solidarity
among African people and countries, while advancing peace, stability and
security on the continent[12].
The Act also emphasizes the importance
of promoting and protecting human and peoples' rights in accordance with the
African Charter on Human and Peoples' Rights and other relevant human rights
instruments[13].
NORMATIVE
FRAMEWORK
1 AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS
2 CONSTITUTIVE ACT OF THE AFRICAN UNION (AU)
3 AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF A CHILD
4 PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA (MAPUTO PROTOCOL)
5 AFRICAN CHARTER ON THE RIGHTS OF PERSONS WITH DISABILITIES
6 AFRICAN RUFUGEES CONVENTION
AFRICAN
CHARTER ON HUMAN AND PEOPLES RIGHTS
The
vision for an Africa whose development is premised on good governance where
there’s respect for human rights, justice and the rule of law, is founded on
the African Charter of Human and Peoples Rights. It recognizes that development
cannot be disassociated from Civil, Political and Economic Social and Cultural
Rights (ESCR). This entails that all these human rights must be present in
order for the society to grow. The Charter covers rights such as the right to
liberty and security[14],
equal protection before the law[15],
right of respect of human dignity and not to be subject to exploitation and
degradation particularly from slavery, torture, cruel inhuman and degrading
punishment[16],
the right to receive information[17],
freedom of conscience, the profession and free practice of religion[18],
right to equal access to public services[19],
right to work under equitable conditions and to receive equal pay for work[20]
and the right to education[21]
and so on.
Key
to ensuring that the African Charter on Human and Peoples Rights are implemented
are the judicial human rights and legal organs of the African Union (AU) namely,
the African Union Commission on International Law, the African Committee of
Experts on Rights and Welfare of a Child (ACERWC), the African Court on Human
and Peoples Rights, the African Union Advisory Board Against Corruption and the
African Commission on Human and Peoples Rights (ACHPR).
CONSTITUTIVE
ACT OF THE AFRICAN UNION (AU)
The
Constitutive Act of the African Union is a treaty that establishes the African
Union. As earlier stated, it was adopted in Lome Togo in 2000 and came into
force on 26th May 2001. Article
2 provides that the African Union shall the established in accordance with
its provisions[22]. Article 3 provides for the objectives
of the African Union such as to achieve greater unity and solidarity between
the African countries and the people of Africa, defend the sovereignty,
territorial integrity and independence of its Member States, accelerate the
political and socio-economic integration of the continent, promote and defend
African common positions on issues of interest to the continent and its people,
encourage international cooperation, taking due account of the Charter of the
United Nations and the Universal Declaration of
Human Rights, promote peace, security and stability on the continent,
promote democratic principles and institutions, popular participation and good
governance and so on[23]
Article 4
sets out the principles of the African Union such as the provisions for
sovereign equity and interdependence among Member States of the Union, Respect
of Boarders existing to achieve independence, participation of the African
people in the activities of the Union, establishment of a common defense policy
for the African Continent and so on[24].
According to Article 5, the organs
of the African Union are, The Executive Council, The Pan-African Parliament,
The Court of Justice, The Commission, The Permanent Representatives Committee, The
Specialized Technical Committees, The Economic, Social and Cultural Council
The
Financial Institutions and other organs that the Assembly may decide to
establish[25].
Further reference can be made to Article
6-31 of the Constitutive Act of The African Union[26].
MAPUTO
PROTOCOL
The
Maputo Protocol, also known as the Protocol to the African Charter on Human and
Peoples' Rights on the Rights of Women in Africa was adopted by the African
Union in 2003. It aims to promote and protect the rights of women in Africa,
addressing various forms of discrimination and inequality. Some of its key provisions
include:
1.
Article 2: Elimination of
Discrimination - States parties shall eliminate all forms of discrimination
against women, including gender-based violence and ensure equal opportunities
in all areas of life.
2.
Article 3: Right to Dignity - Women
have the right to dignity, which includes protection from harmful practices
such as female genital mutilation and other harmful cultural practices.
3.
Article 4: Right to Life, Survival
and Development - States parties shall ensure the right to life, survival, and
development of women, including protection from gender-based violence and
harmful practices.
4.
Article 5: Elimination of Harmful
Practices - States parties shall eliminate harmful practices such as child
marriage, female genital mutilation, and other cultural practices that violate
women's rights.
5.
Article 6: Marriage - Women have the
right to equality in marriage and family relations, including the right to
choose a spouse, equal rights in marriage and divorce, and equal rights to
inheritance.
6.
Article 7: Right to Participation -
Women have the right to participate in the political process, including the
right to vote, hold public office, and participate in decision-making
processes.
7.
Article 8: Right to Social and
Economic Development - States parties shall ensure women's equal access to
social and economic opportunities, including education, training and
employment.
8.
Article 9: Right to Health and
Reproductive Rights - Women have the right to health, including reproductive
health and the right to access safe and legal abortion.
9.
Article 10: Right to Justice and
Protection - States parties shall ensure women's access to justice and
protection from gender-based violence, including sexual violence and
harassment.
10.
Article 11: Right to Peace - Women
have the right to peace and security, including protection from armed conflict
and violence.
RATIFICATION
AND IMPLEMENTATION
The
Maputo Protocol has been ratified by 42 African Union Member States with some
countries in the process of ratification. Effective implementation remains a
challenge requiring sustained efforts from government, civil society and
international organizations to address gender gender inequality and
discriminatory practices.
The
Maputo Protocol sets a comprehensive framework for advancing women's rights in
Africa, addressing various forms of discrimination and inequality. Its
provisions aim to promote gender equality, empower women and ensure their full
participation in all aspects of life.
ENFORCEMENT
MECHANISM OF THE AFRICAN HUMAN RIGHTS SYSTEM
AFRICAN
COMMISSION
Article 30
provides for the establishment of the African Commission[27].
According to Article 31 of the
Charter, there are 11 Commissioners in the African Commission and the
qualification is based on the high moral character and legal competence.[28].
The Commission shall not include more than one national of a state[29].
The term of office for which the Commissioners shall serve are provided for in Article 36 as being elected for a
period of 6 years and will be eligible for re-election, However, the term of
office for four members elected at first selection shall terminate after two
years and the term of office of three others at the end of four years[30].
The Commissioners are elected by the Heads of State[31].
Article 45 sets out the mandate of
the Commission such as promotion of Human and People's Rights The Commission
carries out sensitization, public mobilization and information dissemination
through seminars, symposia, conferences and missions, protection of Human and People's
rights the Commission ensures protection
of human and peoples’ rights through its communication procedure, friendly
settlement of disputes, state reporting (including consideration of NGOs’
shadow reports), urgent appeals and other activities of special rapporteurs and
working groups and missions. Interpretation of the Charter upon a request by a
state party, organs of the AU or individuals, Perform any task which may be
entrusted to it by the Assembly of Heads of State and Government[32].
In
the case of SERAC and Another v Nigeria
where the Nigerian military government has been accused of violating the rights
of the Ogoni people, including health, dispossession of wealth, clean
environment, and family rights, due to its support for oil corporations in
Ogoniland. The Commission using the "respect, protect, promote and
fulfil" approach ruled that the Ogoni people suffered violations of their
right to health, a satisfactory environment and free disposal of resources[33].
Despite the progressive nature of this decision, there had not been any
enforcement years after the recommendations were issued. Further, in Legal Resources Foundation v Zambia
where the Zambian Constitution had been amended to require candidates to prove
both parents are Zambian by birth or decent and limit the number of five-year
terms on the presidency. The Legal Resource Foundation argued that these
changes violated the human rights of 35% of the population and the African
Charter’s equality of all people. The
Commission considered these rules potentially depriving the country of
resources and leadership and the indignity of voting but not standing for
office. The Commission also noted that there are many Zambian citizens whose parents
were not born in Zambia and the amendments therefore violated Articles 2, 3(1) and 13 of the African Charter which
guarantees equality of all peoples regardless of their place of origin[34].
Additionally,
in Zimbabwe Lawyers for Human Rights and
Another v Zimbabwe where Zimbabwean government had deported an American
journalist contrary to Article 9 of
the Charter because he published falsehoods. The Commission held that Zimbabwe
had violated various rights by using force instead of seeking a Court order to
stop a media outlet from operating illegally under a media registration law.
The Commission also recommended Zimbabwe to rescind the deportation order and
allow the journalist to return and practice journalism in Zimbabwe. The High
Court of Zimbabwe had acquitted the journalist of criminal offenses and the
Supreme Court declared the initial charge unconstitutional[35].
Another case that
can be made reference is the case of Purohit
and Moore v the Gambia. The African Commission on Human and Peoples’ Rights
(the Commission) had ruled that the Lunatic Detention Act of Gambia violated
various provisions of the African Charter on Human and Peoples’ Rights
including the right to health. The Act failed to provide safeguards for
patients suspected of being insane during their diagnosis, certification,
detention and did not make provisions for review or appeal against detention
orders. The Commission found that the Act was discriminatory, and violated the
right to liberty, security and the right to have one’s cause heard. The court
also found that mental health patients deserve special treatment due to their
condition and disability. The Commission adopted a position similar to that of
the UN Committee on Economic, Social and Cultural Rights, emphasizing the need
for the state to take concrete steps to ensure the right to health is fully
realized without discrimination[36].
AFRICAN
COURT ON HUMAN AND PEOPLES RIGHTS
The
African Court on human and Peoples Rights is a continental Court developed by
the African Union (AU) to enhance the protection of human and peoples’ rights
in Africa. The Court was established by virtue of Article 1 of the Protocol to the African Charter on Human and
Peoples Rights[37].
The Protocol was adopted on 9 June 1998 in Burkina Faso and came into force on
25 January 2004. The Court started its official operations in November 2006.
One of the mandates of the Court was to complement and reinforce the protective
mandate of the Commission. The mission of the Court is to enhance protective
mandate of the Commission by strengthening the human rights protection system in
Africa and ensuring respect for and the compliance with the African Charter as
well as other international human rights instruments through judicial
decisions.
Since
adoption of the Protocol to the African Charter, only 30 States out of 55
Member States of the African Union have ratified the Protocol. Countries such
as Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Ivory Coast, Comoros,
Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Malawi, Mali, Mauritania,
Mauritius, Mozambique, Nigeria, Niger, Uganda, Rwanda, Sahrawi Arab Democratic
Republic, South Africa, Senegal, Togo, Tanzania and the Democratic Republic of
Congo.
In
addition to the ratification of the protocol, states are required to make a
declaration under Article 34(6) of the protocol to allow
individuals and NGOs to bring cases directly before the Court[38].
Without such a declaration the Court will have no jurisdiction over cases that
are brought before it by individuals and NGOs. In June 2021 only 6 out of 31
States parties made to the Protocol have made a declaration recognizing the
competence of the Court to receive cases from individuals and NGOs countries
such as Burkina Faso, The Gambia, Malawi, Ghana, Tunisia and Mali.
The
Court is composed of 11 judges according to Article 11 of the Protocol as nationals of Member States of the
African Union. The Judges are elected by the assembly of Heads of States. The
Judges serve for a period of 6 years and may be elected only once. Judges are
elected by their respective states in their individual capacities from among
the jurists of proven integrity, competence and experience in the field of
human and peoples’ rights. Article 2
provides for the relationship between the African Commission on Human and
Peoples Rights and Court. The African Court on Human Rights and Justice has not
yet come into force but has already been drafted. Article 3 Sets out the Jurisdiction of the African Court. Article 4 states the advisory opinions
of the court that the Court can requested Advisory Options from the assembly. Article 5 provides for the access to
the Court. Article 6 provides for
the admissibility of cases in. the Court. For further understanding of the
African Court read Article 2-15 of
the Protocol to the African Charter on
Human and Peoples Rights[39].
In
Mtikila v Tanzania, the Court of
Justice of the African Union (CJA) found that Tanzania’s ban on independent
candidates violated Mtikila’s Charter rights, including free association,
participation in government, and equality before the law. The Court called upon
Mtikila to exercise his right to compensation or reparation, but did not make a
finding. In 2014, the Court considered the issue of compensation and costs and
rendered a Reparations Ruling. However, the Court found that Mtikila had failed
to provide adequate evidence of the losses and expenses claimed, rejecting his
claims. Tanzania continued to maintain that the Judgement was wrong, and the
Court ordered Tanzania to report to the Court within six months. This case is
the first to be considered on its merits, the first finding in favor of the
applicant, and the first matter to consider the issue of compensation and
reparations. The Court demonstrated that once a case is admissible, it is
willing to consider it in detail and find in favor of the applicant. However,
Tanzania’s apparent unwillingness to acknowledge its requirement to comply with
the Judgement raises concerns about the right to vote in Tanzania.
[1] Andrew Roberts, ‘Zambia’ in John Parker and Richard Reid (eds), The
Oxford Handbook of Modern African History (Oxford University Press, 2013) Page
543-562.
[2] Patric Chabal and Others, ‘A History of Postcolonial Lusophone
Africa’c (Indiana University Press, 2002) Page 125-150.
[3] Christopher Saunders, ‘Namibia’ in John Parker and Richard Reid
(eds), The Oxford Handbook of Modern African History (Oxford University Press, 2013).
[4] John Durgad, ‘South Africa’ in John Parker and Richard Reid (eds),
The Oxford Handbook of Modern African History (Oxford University Press, 2013).
[5] Organization of African Unity ‘OAU’ Charter (1963) Article 1.
[6] Ibid Article 2.
[7] K Van Walraven, ‘The Organization of African Unity and the African
Unions: A Historical and Institutional Perspective’ in J Akokpari and others
(eds), The African Union and its Institutions Jacana Media, 2008) Page 23-45.
[8] P Meyns, “The Organization of African Unity and Human Rights’
(1982) 12 Journal of Modern African Studies Page 531-547.
[9] Organization of the African Unity, ‘Fourth Extraordinary Session of
the Assembly of Heads of State and Government’ (1999) paragraph 3.
[10] African Union, ‘Constitutive Act of the African Union’ (2000)
Article 1.
[11] Ibid Article 32.
[12] Ibid Article 3.
[13] African Commission on Human and Peoples’ Rights, ‘African Charter
on Human and Peoples’ Rights (1981) Article 1 and 2.
[14] African Charter on Human and Peoples Rights, Article 6.
[15] Ibid Article 3.
[16] Ibid Article 5.
[17] Ibid Article 9.
[18] Ibid Article 8.
[19] Ibid Article 13(3).
[20] Ibid Article 15.
[21] Ibid Article 17
[22] Constitutive Act of the African Union (2000) Article 2.
[23] Ibid Article 3.
[24] Ibid Article 4.
[25] Ibid Article 5.
[26] Ibid Article 6-30.
[27] African Charter on Human and Peoples Rights, Article 30.
[28] Ibid Article 31.
[29] Ibid Article 32.
[30] Ibid Article 36.
[31] Ibid Article 33.
[32] Ibid Article 45.
[33] Social and Economic Rights Action Center (SERAC) and Another v
Nigeria [2001] AHRLR6.
[34] Legal Resources Foundation v Zambia No.211/98 (2001).
[35] Zimbabwe Lawyers for Human Rights v Zimbabwe (2009).
[36] Purohit
and Moore v The Gambia Communication 241/2001 (2003) AHRLR 96 (ACHPR 2003).
[37] Protocol to the African Charter on Human and Peoples Rights of
1998.
[38] Ibid, Article
34(6).
[39] Ibid Article 2-15
REFERENCES
Legislation
Protocols to the
African Charter on Human and Peoples rights.
Constitutive Act
of the African (Lomé Togo1 July 2000).
African Charter on Human and Peoples Rights (1981).
Case Law
Legal Resources Foundation v Zambia 211/98 of 2001 AHRLR 84.
Purohit and Moore V The Gambia Communication 241/2001 (2003) AHRLR 96 (ACHPR 2003).
Tanganyika Law Society and Others v United Republic of Tanzania; Mtikila v United Republic of Tanzania (Application No. 009/2011; Application No. 011/2011) [2013] AfCHPR 8 (14 June 2013).
Zimbabwe Lawyers for Human Rights v Zimbabwe (2009).
Social and Economic Rights Action Center (SERAC) and another v Nigeria [2001] AHRLR6.
Books
Christopher Saunders, ‘Namibia’ in John Parker and Richard Reid (eds), The Oxford Handbook of African History.
John Dugard, ‘South Africa’ in John Parker and Richard Reid (eds), The Oxford Handbook of African History.
Andrew Roberts, ‘Zambia’ in John Parker and Richard Reid (eds), The Oxford Handbook of African History.
Journal Articles
Patrick Chabal and others, A History of Postcolonial Lusophone Africa (Indiana University Press, 2002) 125-150.
LEGAL AID INITIATIVE
(Bringing the Law to Your Comfort)
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