African Human Rights

1. What does the African Charter tell us about the human rights issues of particulars
importance in Africa?

The African Charter on Human and Peoples' Rights reflects in many ways a reaction to the
continental reality and particular importance.
One of the important things inculcated in the charter is recognizing a "peoples"' right to self-
determination. All "peoples," according to the Charter, have a right to be equal; to existence and
self-determination; and to freely dispose of their wealth and natural resources. Clearly a major
part of the motivation for the recognition of "peoples' rights" lies in the fact that entire "peoples"
have been colonized and otherwise exploited in the history of slavery and slave trade in Africa
and have had to engage in protracted struggles to realize their human rights. Moreover, the
recognition and protection of peoples’ rights under the Charter reflects the values of African
societies, where a person is not regarded as an isolated and abstract individual, but an integral
member of a community.
Demystification of the myth that socio-economic rights are non-justiciable and they are mere
aspirations and programmatic action plans by the African Charter may be taken as another
peculiar indicator which has an African importance. Because, many African people have been
languishing under poverty, lack of housing, clean water and denied from work, health and
education facilities which led to marginalization. One of the inventions of the Charter is therefore
equal recognition of all human rights and declaring justiciability before a judicial process, which
enhances universality and indivisibility, and demonstrates the interdependence attaching to all
human rights. The irony is, it has failed to recognize many important rights including the right of
food, housing and social security.

2. What was the place of human rights in the mandate and practice of OAU?

The dominating concerns of independent African states at the formation of OAU were ensuring
the independence of those African peoples who were still colonized, condemnation of the
apartheid regime in Southern Africa, and protecting the newly acquired statehood. In general,
restoration of state sovereignty and achieving the total liberation of the whole people of Africa
has pre-occupied the conscious of African states. These have caused for the failure to give
substantial consideration of human rights in the Charter of the OAU. The Charter made only a
passing reference; it did not give direct attention to the human rights agendum. The preamble of
the OAU make little express mention of human rights; it has made reference to the UDHR and
the UN Charter but in the body of the Charter no position is expressed form the OAU, which
shows that OAU did not have a direct commitment to protection and promotion of human rights.

Much of the principles and purposes adopted in the Charter are on respect of sovereignty and
territorial integrity in which this preoccupation is justified by the historical violation of
sovereignty. The insistence over sovereignty and territorial integrity is because the independence
of African countries was not seen viable and the organization stands firm over keeping this
fragile independence and sovereignty. This fundamentalism over sovereignty has restricted the
issue of human rights with in the realm of domestic matters and left states.
Therefore, the concept of human rights within the OAU Charter went little beyond the notion of
self-determination in the context of decolonization and apartheid in South Africa. Thus, from the
point of view of human rights, it was the two issues of self-determination and apartheid/racial
discrimination in southern Africa that were central to the OAU at its formation and which appear
to have guided its approach to human rights throughout its later years. The cause of freedom and
independence was itself a basic human right, of course, and the concentration was placed on this
struggle, a struggle to be free from foreign occupation, a struggle to be in charge of one’s own
affair.
The euphoria and hope of independence for African communities and individuals has however
turned to a nightmare. Authoritarianism and recurrent conflicts has swamped Africa, while less
attention was given to the concepts of human rights or democracy. OAU has been noted for
serious setbacks as it kept adamantly silent on matters of violations of human rights by its own
member states, by adhering to the strict understanding to the notion of state sovereignty.
Corresponding to the neglect of human rights, no institution was established under the OAU. For
significant period of its existence, the OAU has a recorded history of neglect of human rights
both institutionally and establishment of mechanisms.

However, the OAU began engaging in human rights by the end of the 1960s, by adopting human
rights and human rights related instruments. In 1969, it has adopted the Convention Governing
the Specific Aspects of Refugees problems in Africa followed with adoption of the African
Charter on Human and Peoples Rights in 1981, which entered in to force in 1986. Moreover, in
1990, the African Charter on the Rights and Welfare of the Child was adopted by OAU. The
1998 protocol on the African Charter for the establishment of the African Court of Human and
Peoples Rights and the Protocol to the Rights of Women (though finally adopted by AU) are also
the products of OAU in its forty years span.

3. In what ways has the African Charter been affected by OAU’s and its member states
prioritization of state sovereignty over human rights? Is this reflected in the
provisions of the Charter and how?
The sacred value given to state sovereignty by OAU and its member states has seriously affected
the design of the African Charter on Human and Peoples Rights. This is manifested in many
ways. The first instance is extensive use is made of ‘claw back’ clauses that seem to make the
enforcement of a right dependent on municipal law or at the discretion of the national authorities.
These internal modifiers qualify rights and permit a state to restrict those rights to the maximum
extent permitted by domestic law. The clauses limit the impact of the African Charter’s
provisions by giving member states ‘too much autonomy allowing them to violate human rights
with impunity.’ This limitation is observed in the following provisions of the Charter: the rights
to life (article 4), liberty and security of the person (article 6), the freedoms of conscience,
profession and religion (article 8), association (article 10), assembly (article 11), movement and
residence (article 12) and the right to participate in government (article 13). The attainment of
these rights therefore appears to be undermined because it is dependent on the dictates of
municipal law. This is a hard fence built by African States towards their fundamentalism on
sovereignty, which gives priority to state sovereignty to human rights.

The second effect of the priority of sovereignty to human rights protection is the absence of
derogation clause. In contrast to other international human rights instruments, the African
Charter does not contain a derogation clause. Therefore limitations on the rights and freedoms
enshrined in the Charter cannot be justified by emergencies or special circumstances, which are
also affirmed by the decision of the African Commission. But this is counterproductive in
different ways. First, there is no any jurisprudence which establishes a list of non-derogable
rights. Moreover, the guarantees attached to the temporary nature of the system of derogation are
also missing from the Charter. This will surely give the leverage for states to suspend all rights
and to extend the effect of suspension beyond a reasonable time. This is therefore leaving states
at a liberty to regulate the circumstances which necessitate suspension of rights by their own
domestic laws. This can be taken as another safety measure taken by OAU and its member states
towards state sovereignty.

4. What historical and political factors led to the drafting and adoption of the African
Charter on Human and Peoples Rights by OAU?

It is only after 1970s that the idea of adoption of a regional human rights system in Africa
received support. A number of factors both internal and external have ignited the African leaders
to adopt the African Charter on Human and Peoples Rights in 1981. First, the Charter of the
OAU affirms commitment to the UN Charter and the UDHR and the ratification by many
independent African states of the UN Charter and other human rights instruments imposed an
obligation on African states for the promotion and protection of human rights. Second, the
independence of many Southern African countries from Portuguese colony, the transformation of
Ghana and Nigeria from military rule to elected government in 1979, the atrocious human rights
violations by the 1970 in many parts of Africa have added an impetus in the move towards the
drafting and adoption of the African Charter. The role of UN by taking various initiatives over
the need for and establishment of regional human rights at African level is also noteworthy.

Thirdly, many western countries including USA placed emphasis on respect for human rights in
their international relations with African states. The Carter administration for instance used the
human rights credentials of states as a criterion for allocating economic aid to third world
countries. Last but not least, NGOs have also played their part in the adoption of the Charter. For
example, the International Commission of Jurists called upon the African states to adopt the
African Convention on Human Rights since 1961.

The president of Senegal, Leopold S. Senghor, has initiated a motion at the Monrovia meeting of
the heads of state and governments and Nigeria has supported the motion which is a
breakthrough. The process of drafting an elaborate document has been kicked off by 1979 and it
took two years. The President of The Gambia and the then Secretary General of the OAU, Edem
Kodjo, have facilitated the elaboration of the charter. Finally came, the adoption of the document
in June 1981 in Nairobi.
5. In what ways does the pre-colonial, colonial and post-colonial history of the peoples of
Africa shape the content of the African Charter? In what ways does and should this history
shape the jurisprudential elaboration of the African Charter by the African Commission
and the African Court?

Talking about pre-colonial human rights in Africa is always encumbered with proving it. Be that
as it may, there are claims that there were some processes and institutions that give prominence
to the current principles of human rights though human rights in its current form did not exist. In
pre-colonial Africa, both the individual and the group were regarded to be entitled with some
rights although in different forms. Based on this, traditional Africa has entrenched values like
dignity, respect for others, family, community and tolerance for difference in different aspects.
This has transcended generations and it has got a room under the African Charter as the latter
recognizes both individual and peoples rights. The African Commission has also reaffirmed the
rights of peoples in several occasions. The decision of the Commission in the SERAC vs. Nigeria
and the Endorois vs. Kenya cases are noteworthy with regard to the rights of communities to
development.

Among the specific rights that were recognized by pre-colonial Africa was the right to land
which has currently gained a sacred value in many societies in Africa and get recognition in the
Charter. In the Endorois vs. Kenya entertained by the Commission, the right to land is one of the
important claims raised by the claimants and seriously considered by the Commission.

Finally, individuals are recognized as a moral being and holders of rights and duties in pre-
colonial Africa which evidenced the inseparability of human rights and duties. This has also
influenced the drafters of the African Charter as it has parallel inculcation of both rights and
duties. Colonial Africa has experienced untold grave human rights violations. The violations
range from the violation of right to be free from exploitation, dignity to self-determination and
development. Colonial masters have caused abuse of individuals and communities in Africa. The
imposition of unhistorical borders and political boundaries are the product of the colonials by
their brute force. Colonialism institutionalized abusive and illegitimate and authoritarian system
which violates socio-economic and political equalities. Beyond this, the people and resources of
Africa were exported to the home of colonizers without meaningful benefit accruing to local
communities and individuals. Generally, there was no the rights to self-determination in which
peoples across Africa have been victimized by brutal colonial proxy leaders.

This has influenced the shape of the African Charter as the idea to draft and adopt it was held
during where some African states were yet under colonial rule. In addition, the apartheid rule in
South Africa was very horrifying that the OAU member states have pushed for the incorporation
of the right of self determination for people and legitimized armed struggles towards
independence. The charter has thus included the right of self determination for people in clear
terms. This right has also been claimed by communities in independent countries due to the
authoritarian and discriminatory governments. The Katanagese people in Zaire have for instance
raised the right before the Commission, which has responded in the affirmative that communities
at sub-national level may claim the right of self-determination enshrined under the Charter. In a
case concerning the 1994 coup d'etat against the democratically elected government of The
Gambia, the Commission held that this violated the right to self-determination of the people of
The Gambia as a whole. Therefore, the strong position taken by both the Charter and the
Commission is the effect of the colonial legacy in which the African people have suffered by
self-appointed referees against the will of the people.

The success of struggle against colonialism to be free from foreign occupation and to be in
charge of one’s own affair has brought some euphoria to African peoples. It was tragic however
that after independence, many African countries did not practice what they preached against the
colonialists in relation to their own peoples, but engaged in outrageous human rights violations
under the not so watchful eyes of the OAU. Coups and counter coups have become the order of
the day. Personal rules and the proscription of multiparty system in Africa made its people
nostalgic of the era of colonialism. Patronage system, corruption, nepotism, poverty were all
become the order of the day. Economic growth was stagnated and in some countries deteriorated.
Recurrence of violent conflicts in many parts of Africa led to violation of human rights. These
disappointing states of affairs have ignited Africans for another stage of struggle against their
domestic colonizers and have in some way influenced some of the provisions of the Charter and
the decision of the Commission. The inclusion of the right of development and peace and
security in the Charter can be taken as the effort to address the post-colonial African realities.
6. What are the substantive contributions of the African Charter to the corpus of
international human rights?

In addition to the entrenchment of many African values and addressing the problems peculiar to
Africa, the Charter has contributed to the development of the international human rights system.
The first one is the rejection of the distinction between socio-economic rights on the one hand
and civil and political rights on the other hand. While the international human rights system was
swinging over the justiciability of socio-economic rights based on ideological and political
positions, the African Charter has braved out the several clouts to clear the confusion and
institutionalized the protection of all human rights with out any distinction. The very preamble of
the Charter declares that ‘civil and political rights can not be dissociated from socio-economic
rights in their conception as well as universality and that the satisfaction of socio-economic
rights is a guarantee for enjoyment of civil and political rights.’ As part of this pledge, the
Charter consists of all human rights in an effort to give full recognition for all human rights. This
is reaffirmed by the African Commission in several communications submitted based on
violation of socio-economic rights, including the SERAC Case.

The other substantive contribution for the Charter is the recognition extended towards protection
of people’s rights, which is left unnoticed by many instruments developed at the UN level. From
the very inception of the Charter, people are given a room since the individual protection of
human rights is not self-sufficient to realize effectively the rights enshrined under the Charter
and other instruments of international origin.

The Charter has also extended the right to development for people in which it is closely allied to
the issue of participation. By recognition of the right to development, the Charter has laid a basis
to bring the issue towards the international fora of human rights. Ensuring the effective
participation of the people in the development plans within their territory, the state has a duty to
actively consult the said community according to their customs and traditions. This duty requires
the state both to receive and disseminate information and regular communication with the
necessary stakeholders. This has thus helped the international community to move for the
declaration on the right to development adopted in 1986.