Professional Documents
Culture Documents
ACKNOWLEDGEMENT
First and foremost I thank almighty God for his gracious blessings upon us.
I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many important people. I would like to
extend my sincere thanks to all of them.
I am highly indebted to Dr. P.P Rao for his guidance and constant supervision
as well as for providing necessary information regarding the project & also for
his support in completing the project.
I also want to express my sincere gratitude to all those authors and researchers
whose works helped me to gather various information used in this project. I also
want to thank the college library and honourable librarian for providing me the
needed books.
CONTENTS
TOPICS
PAGE NO.
1. Introduction
04-06
07-10
11-13
14-17
5. Enforcement Regime
18-22
Conclusion
INTRODUCTION
The African Charter on Human and Peoples' Rights (also known as the Banjul Charter)
is an international human rights instrument that is intended to promote and protect human
rights and basic freedoms in the African continent.
It emerged under the aegis of the Organisation of African Unity (since replaced by
the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted
a resolution calling for the creation of a committee of experts to draft a continent-wide human
rights instrument, similar to those that already existed in Europe (European Convention on
Human Rights) and the Americas (American Convention on Human Rights). This committee
was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981
Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after
the reception by the Secretary General of the instruments of ratification or adherence of a
simple majority" of the OAU's member states), the African Charter on Human and Peoples'
Rights came into effect on 21 October 1986 in honour of which 21 October was declared
"African Human Rights Day".
Oversight and interpretation of the Charter is the task of the African Commission on Human
and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia.
A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on
Human and Peoples' Rights was to be created. The protocol came into effect on 25 January
2004.
In July 2004, the AU Assembly decided that the ACHP would be incorporated into
the African Court of Justice. In July 2005, the AU Assembly then decided that the ACHP
should be operationalised despite the fact that the protocol establishing the African Court of
Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session of the
Executive Council of the African Union meeting in Khartoum, Sudan, on 22 January 2006,
elected the first judges of the African Court on Human and Peoples' Rights. The relationship
between the newly created Court and the Commission is yet to be determined.
As of 2013, 53 states have ratified the Charter. It has been ratified by every AU member state
with the exception of South Sudan. The African Charter on Human and People's Rights
followed the footsteps of the European and Inter-American systems by creating a regional
4
human rights system for Africa. The Charter shares many features with other regional
instruments, but also has notable unique characteristics concerning the norms it recognizes
and also its supervisory mechanism.
The
preamble
commits
to
the
elimination
of Zionism,
which
it
compares
with colonialism and apartheid, caused South Africa to qualify its 1996 accession with the
reservation that the Charter fall in line with the UN's resolutions "regarding the
characterization of Zionism.
The Banjul Charter departs, in very significant ways, from contemporary multilateral human
rights instruments. One of these is the dynamic entrenchment of the concept of "peoples" into
international human rights theory-a concept, however, that had long enjoyed some currency
in inter- national law As early as 1790, the decree of the French Constituent Assembly
referred to both the rights of man and the rights of peoples.8 More recently, the term has been
liberally invoked "in a number of international instruments on human rights, and General
Assembly resolutions, more particularly those dealing with self-determination and permanent
sovereignty over natural resources." For example, the Charter of the United Nations was
adopted in the name of "We the Peoples" and it recognized, in Article 1(2), the principle of
"self-determination of peoples." Common Article 1 of the 1966 International Human Rights
Covenants deals with the right of peoples to self-determination. Furthermore, and
specifically, in July 1976, a group of eminent individuals meeting in Algiers proposed to the
world the Universal Declaration on the Rights of Peoples (Algiers Declaration), in which a
number of peoples' rights were elaborated. 3 In spite of this concern for peoples and peoples'
rights, the term "people" has not been authoritatively defined in any of the instruments that
employ it. Moreover, it is not used to convey identical meanings in all these instruments. The
intention of this paper, therefore, is to attempt to work out the meaning of the term "people"
as used in the Banjul Charter, which the architects deliberately left undefined "so as not to
end up in difficult discussion. " It will be argued that its meaning is not consistent in the
Charter, as it is always determined by the context of the particular rights referred to.
However, before the various meanings of the term are discussed, it might be helpful briefly to
reflect upon the philosophy underlying the concept of "people" and the relationship between
peoples' and human rights in the Banjul Charter.
RESEARCH METHODOLOGY
Only doctrinal method of research was used.
United Nations, Seminar on Human Rights in Developing Countries, Dakar, 8-22 February 1966, New York:
United Nations, 1966.
2
A/RES/34/171 (1979).
See: Ouguergouz F., The African Charter on Human and Peoples Rights. A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York,
2003, pp. 377-378,
4
African Charter on Human and Peoples Rights, OAU Ministerial Meeting on the Draft African Charter on
Human and Peoples Rights, Banjul (The Gambia), 7-19 January 1981, OAU DOC CAB/LEG/67/3/Rev. 5
5
Ouguergouz F., The African Charter on Human and Peoples Rights. A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York,
2003, p. 47.
their actual enjoyment appeared in a fresh light; the chief outcome of this was to speed up the
second Banjul meeting, which ended before the scheduled date.6
There is nothing new about the proposition that the international human rights movement
reflects, to a large extent, the liberal, individualistic tradition of civil and political liberties as
developed in such countries as Great Britain, the United States and France. There is
something very new, on the other hand, in the present attempt by the Organisation of African
Unity to embody a list of collective or peoples' rights in a human rights convention that
provides for the enforcement of those rights.7 For some time now, the belief has been
expressed that the world must move beyond the standard Western-oriented civil and political
rights. Only now, however, with the drafting in 1981 of the Banjul Charter on Human and
Peoples' Rights, are serious steps being taken in that direction. It would appear that
remarkably little consideration has been given to the legal problems that might arise when
(and if) the peoples' rights provisions of the Banjul Charter come into force. The tendency
has been to assume that these peoples' rights are what one might call autonomous rights-i.e.
existing entirely on their own, separate and apart from the traditional civil and political rights.
Such may be the case conceptually, but in practice the position is likely to be very different.
For instance, it is difficult to conceive how the peoples' rights of the African Charter will be
able to form the bases of claims before the African Commission on Human and Peoples'
Rights.5 How will claimants before the Commission be expected to establish that a State has
interfered with, say, the right of all peoples to "their economic, social and cultural
development with due regard to their freedom and identity and in the equal enjoyment of the
common heritage of mankind" (Art.22(1) of the Banjul Charter)? Or with the right of all
peoples to "national and international peace and security" (Art.23(1) of the Charter)? Or with
the right of all peoples to "a generally satisfactory environment favourable to their
development" (Art.24)? It would appear much more likely that considerations of the rights of
collectivities or of peoples will emerge, in African human rights law, not entirely on their
own, but rather as aspects of problems involving either the more traditional civil liberties or
perhaps just ordinary litigation. The important legal issues of the future in African human
rights law-and, indeed, in the law of collective or peoples' rights generally-will not be such
matters as the meaning of, say, the right to development in the abstract, but rather (putting the
6
Ouguergouz F., The African Charter on Human and Peoples Rights. A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York,
2003, p. 46.
7
Ian Brownlie, Basic Documents on Human Rights (2nd ed., 1981), p.118
matter at its broadest) such questions as how far the traditional concepts of individually
oriented civil rights will have to be modified in order to "make room" (as it were) for the
collective rights. The important questions in the future about collective or peoples' rights,
then, will concern not necessarily the intrinsic meaning of these new rights, in the abstract, so
much as their relationship to the traditional body of human rights law.
10
African Commission on Human and Peoples Rights, Communication 276/03 Centre for Minority Rights
Development (Kenya) and Minority Rights (on behalf of Endorois Welfare Council) / Kenya, November 2009.
9
African Commission on Human and Peoples Rights, Communication 155/96 Social and Economic Rights
Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, October 2001.
11
legally binding10. The status granted to these third generation rights in the African Charter is
unique.
The indivisibility of third generation rights was recognised in the case of SERAC v Nigeria,
para 68 which states that clearly, collective rights, environmental rights, and economic and
social rights are essential elements of human rights in Africa. The African Commission will
apply any of the diverse rights contained in the Charter. It welcomes this opportunity to make
clear that there is no right in the African Charter that cannot be made effective11
ii) True indivisibility and interdependence of rights
Secondly, when one looks at the drafting context of the international bill of rights, it is quite
exceptional the way in which the African Charter juxtaposes previously compartmentalised
rights: on one hand, civil and political rights are brought together with economic, social and
cultural rights, and, on the other hand, individual and collective rights viewed in tandem.
The international bill of rights was originally intended to be one comprehensive document,
but the Cold War context brought about regional bloc voting - particularly between the West
and Communist states and three separate documents were created the Universal Declaration
of Human Rights, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. The African Charter stays
true to the purported indivisibility and interdependence of all sets of human rights.
Accordingly, all rights are contained within the same instrument and whenever there is a
conflict between two or more rights, a balance is struck between them.
iii) Rights and duties together
Thirdly, the Charter is more specific about the implementation of rights by stating both the
rights and duties of the individual. Although most definitions of law commonly agree that
rights also entail duties, no human rights instrument elaborates on the side of duties. The
African Charters approach is excellent in this respect. While the African Commission has
not had a chance to make any finding on the merits in relation to the duties, domestic courts
have. For instance, in the case of dAlmeida Gatan and Hilaire before the Constitutional
10
12
Court of Benin, it was found that two children have violated their duty vis--vis their parents
by physically abusing them.12
v) Specific emphases
Fourthly, the Charter provides a specific emphasis on development, decolonisation, and racial
discrimination. Although in recent times this has lost much of its urgency, there are still
instances where it should help in the protection of minority rights notably in the right to
self-determination in the Western Sahara and Cabinda.
12
Republic of Bnin, Constitutional Court, Decision DCC 96-024, 26 April 1996 (in French
only:http://www.cour-constitutionnelle-benin.org/doss_decisions/960424.pdf).
13
13
14
NONDISCRIMINATION
African Charter contains two articles dealing with this subject. Article 2 provides for the
"enjoyment of the rights and freedoms recognised and guaranteed in the . . . Charter" on a
non-discriminatory basis. It is analogous to Article 14 of the European Convention on Human
Rights. Article 3 of the Banjul Charter, on the other hand, provides for the general equality of
all persons before the law and for the entitlement of all persons to equal protection of the law.
The analogy here is to the Fourteenth Amendment of the United States Constitution and also
to Article 24 of the American Convention on Human Rights. These articles of the African
Charter appear unexceptionable enough, until one considers that in many African States, such
as the three with which the present discussion is concerned, there are entire systems of
customary law co-existing with the formal legal systems" of the type familiar in European
and American countries.14 In areas such as family law and succession, it is entirely reasonable
to suppose that customary rules will diverge from "official" ones. The question then arises: to
what extent is such divergence compatible with the general norm of non- discrimination? In
this connection, it might be recalled that the conclusion of the African Conference on the
Rule of Law of 1961 (a gathering of legal scholars in their private capacities) contained an
express provision on this point. It recommended that the customary law of the African
countries then just emerging into independence be administered by the ordinary courts,
although it did not recommend that the substance of that law be abolished.15
14
Schapera, "Contract in Tswana Law", in Ideas and Procedures in African Customary Law (Max Gluckman
(Ed.), 1969), p.318
15
Para.4 of the Conclusions of Committee III of the African Conference on the Rule of Law, in International
Commission of Jurists, African Conference on the Rule of Law, Lagos, Nigeria (1961), p.20; reprinted in Ian
Brownlie, Basic Documents on Human Rights (2nd ed., 1981), p.431
15
Charter
not
only
awards
rights
to
individuals
and
peoples,
but
also
includes duties incumbent upon them. These duties are contained in Article 29 and are as
follows:
To serve the national community by placing both physical and intellectual abilities at its
service.
To preserve and strengthen national independence and the territorial integrity of one's
country and to contribute to its defence.
To work to the best of one's abilities and competence and to pay taxes in the interest of
society.
To preserve and strengthen positive African cultural values and in general to contribute to
the promotion of the moral well-being of society.
To contribute to the best of one's abilities to the promotion and achievement of African
unity.
ADDITIONAL INSTRUMENTS
African States have developed four other instruments to complement the substantive legal
framework of the African Charter. These instruments focus on specific groups of people and
16
areas of life, which are deemed to be particularly vulnerable to human rights abuses. Rights
are articulated in more detail to offer additional protection.
(i) The African Charter on the Rights and Welfare of the Child, 199016;
(ii) The Protocol on the Rights of Women in Africa, 2003;
(iii) The African Charter on Democracy, Elections and Governance, 2007;17 and
(iv) The African Union Convention for the Protection and Assistance of Internally Displaced
Persons in Africa, 2009.18
Another instrument, which also complements the African Charter, is the OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa. However, it was adopted in
1969, before the African Charter.
These instruments substantiate the African Charter and offer alternative mechanisms for
enforcement.
16
17
ENFORCEMENT REGIME
The African Charter had initially only envisaged the existence of the African Commission to
operate in tandem with the domestic institutions of each State party. However, additional
organs were later set up to further enforcement capabilities- either through a specifically
designed instrument such as the African Court or through some of the additional instruments
mentioned above, such as the African Committee of Experts on the Rights and Welfare of the
Child.
i) African Commission on Human and Peoples Rights
The original organ, the African Commission on Human and Peoples Rights19was established
in 1989 and is composed of 11 members (Art. 31). It has a twofold mandate: promotion and
protection (Art. 30).
Promotion entails advocating human rights in Africa and ensuring that the instrument and its
provisions are well known. The Protective mandate is implemented through the reporting
regime and the communication practice.
a) Reporting
Under the reporting regime, each State party has the obligation to submit a report every two
years (Art. 62). However, the African Charter does not specify which organ must receive the
report or the precise mandate of the recipient organ.
During its 24th Ordinary Session, the African Commissions suggestion that states submit
their reports to it for assessment and recommendation was approved by the AU Assembly20.
In practice, the majority of the States submit their reports late and the African Commission
lacks any enforcement mechanisms to ensure any effective repercussions - except by naming
the states.
b) Communications
19
18
Communications can emanate from states (Article 47) or from others present at Ordinary
Sessions (Article 55). The African Commission is empowered to hear these but cannot act
with any force unless it goes through the chief organ of the continental organisation, the
Assembly of the African Union.
While communications by states is part of classical international law, communication other
than those of State Parties in Article 55 is quite vague. The African Commission has adopted
a broad approach and has interpreted the article as referring to communications submitted by
organisations registered with it and individuals.
However, this approach is limited because any decision by the African Commission on a
communication will still be submitted to the Assembly. Decisions within the Assembly are
usually derived through a consensus and, in this case, it means that the respondent state
would have the right to oppose any authorisation for publication. Even after publication, the
African Commission still lacks mechanism to follow up and to ensure compliance.
ii) The African Court
This flaw has been corrected with the Protocol establishing the African Court on Human and
Peoples Rights (African Court) adopted in 199821and in force since January 2004. While the
African Commission is a quasi-judicial organ, the African Court is a fully-fledged court with
11 judges - the first bench was elected in January 2006 and sworn in a few months later.22
The African Court is mandated by the Protocol to determine cases brought before it by any
state party, the African Commission, any African intergovernmental organisation, but also
civil society organisations and individuals (Art. 5 of the 1998 Protocol).
In the case of civil society organisations and the individuals, and in contrast to the procedure
under the African Commission, the respondent state needs to make a declaration authorising
the application (Art. 34(6) of the 1998 Protocol)23.
21
19
The Court is also mandated to provide advisory opinions upon the request of any member
state of the African Union, the African Union itself, any of its organs, or any African
organisation recognised by the African Union (Art. 4 of the 1998 Protocol).
iii) The African Court of Justice and Human Rights
At the time when the Protocol establishing the African Court entered into force in 2004, the
serving Chairperson of the African Union and President of the Federal Republic of Nigeria,
Olusegun Obasanjo, suggested that the Court should be merged with the AUs African Court
of Justice (ACJ) to cut costs. The ACJ was the main judicial organ of the African Union
dealing with interstate disputes. The two courts merged to create the African Court of Justice
and Human Rights in July 2008 in Sharm El-Sheikh, Egypt.24 The merged Court is composed
of 16 Judges assigned to two sections: general affairs and human rights.
This institutional judicial framework might face new challenges following plans to extend the
jurisdiction of the Court to include criminal matters. This development is directly related to
the criticism of the International Criminal Court primarily for its focus on Africa and the
indictment of Omar Al Bashir. A draft protocol has been submitted to the Assembly of the
African Union but during its summit in July 2012, the Assembly postponed its adoption until
further information from the Commission is received25.
The African Court of Human and Peoples Rights (ACHPR) was established by the
Protocol to the African Charter on Human and Peoples Rights on the Establishment of an
African Court on Human and Peoples Rights (the Court Protocol) which entered into force in
2004.
It is a regional court created to make judgments on African Union states' compliance with
the African Charter on Human and Peoples' Rights. It came into being on January 25, 2004
with the ratification by fifteen member states of the Protocol to the African Charter on
Human and Peoples Rights Establishing the AfCHPR. As of April 2014, just 27 of the
African Union's 54 members have ratified and are parties to the Court. The AU discourages
prosecution of human rights abuses in the International Criminal Court, hoping that they
would be tried by the AfCHPR instead; but the AfCHPR has achieved very little.
24
Elias O., Introductory Note to the Protocol on the Statute of the African Court of Justice and Human Rights,
48 International Legal Materials 314 (2009), pp. 334-336
25
Assembly/AU/Dec. 427 (XIX) Decision on the Protocol on Amendments to the Protocol on the Statute of the
African Court of Justice and Human Rights
20
On January 22, 2006, the Eighth Ordinary Session of the Executive Council of the African
Union elected the first eleven Judges of the African Court on Human and Peoples' Rights.
Judges are normally elected for six-year terms and can be re-elected once. The President and
Vice-President are elected to two-year terms and can be re-elected once.
The Court had its First Ordinary Session from July 25, 2006 in Banjul, The Gambia.
Member states of the protocol establishing the Court, as well as the African Commission and
African inter-governmental organisations, may bring before the Court applications against
members states of the protocol.
Individuals and NGOs with observer status before the African Commission on Human and
Peoples Rights, however, can file applications only against members states accepting that
specific option (as of 2013, Burkina Faso, Ghana, Malawi, Mali, Tanzania and Rwanda).
iv) African Committee of Experts on the Rights and Welfare of the Child
The African Commission is further supplemented by an African Committee of Experts on the
Rights and Welfare of the Child (ACERWC).26 In July 1990, the OAU adopted the African
Charter on the Rights and Welfare of the Child, which establishes this Committee (Art. 32 of
the 1990 African Charter). This Charter entered into force on 29 November 1999 and the first
11 members of the Committee were elected in July 2001. Forty-six States have already
ratified the Charter. The mandate of the Committee of Experts is to monitor the
implementation of the Charter, both through promotion and protection, with the possibility
for civil society organisations and individuals to submit individual applications. Until now,
the Committee has issued only one decision where it found that Kenya violated various rights
established in the 1990 Charter27.
All these institutions support the African Commission to ensure protection of human rights in
Africa.
26
21
CONCLUSION
The task of building an effective international law of human rights for Africa-including a law
of collective or peoples' rights-is likely to require the skills of the sociologist and the
anthropologist as well as of the lawyer. The reason, in brief, is that it is simply naive to
suppose that a system of international human rights law can or will descend upon Africa from
above, as it were, like some sort of juridical Pentacost. The central thesis of this discussion
has been that, on the contrary, it is essential to understand something of the pre-existing legal
and socio-economic bases upon which the law of the African Charter will build. The
sweeping generalisations which characterise such current human rights initiatives as the
"right to development" are all too likely to prove irrelevant to the living law of Africa (or of
anywhere else).
It is an unfortunate weakness of the Banjul Charter that its provisions on peoples' rights are
so vague and sweeping as to be hardly more than mere rhetoric. They are more likely to
confuse lawyers than to enlighten them. More specifically, they are likely to distract legal
scholars from the hard labours which await them in this area. When (and if) the African
Charter enters into force, it will-or at least should-become necessary to make difficult
decisions about the social, economic and legal conditions prevailing in the various States
parties, in order to decide what modifications will have to be made to the traditional body of
individualistically oriented human rights norms. It is from the political, economic, social and
legal thickets of the individual African States that a meaningful law of collective or peoples'
rights will emerge (if at all), rather than from the lofty pronouncements of such rights in the
abstract. It is hoped that this study may constitute a small advance survey of these as yet
unexplored thickets
All 53 Member States of The African Union have ratified the African Charter on Human and
Peoples Rights. This makes it the most important human rights instrument on the continent.
Only Morocco, which withdrew from the continental organisation in 1983, is not a member
state. While its substance is determined by Member States, like every other international law
instrument, its life and application does not depend exclusively on the States. It is, therefore,
the duty of every African to ensure compliance, using as needed the various enforcement
mechanisms in place. If these conditions are fulfilled, the rule of law and the protection of
human rights on the continent will improve.
22
BIBLIOGRAPHY
1. Hassan B. Jallow , The Law of the African (Banjul) Charter on Human and People's
Rights, Trafford Publishing, 2007.
2. A. M. Fanana, Measures of safeguards under Banjul Charter on Human and Peoples
Rights- A Comparative Study, Institute of Soutern African Studies, Lesotho, 2002.
3. Charles Mwalimu, The Golden Book: Philosophy of Law for Africa Creating the National
State of Africa, Peter Yang Publishing Inc., New York,2010.
4. Chris Maina Peter, Human Rights In Africa, 10th Volume, Greenwood Press, Michigan,
1990.
WEBSITES
http://www.au.int/en/sites/default/files/Welfare%20of%20the%20Child_0.pdf.
http://www.african-court.org/).
http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_
Wlefare_of_the_Child_AddisAbaba_July1990
http://www.achpr.org/states/reporting-procedure/.
23