The Civil and Political Rights in African Charter

The African Charter on Human and Peoples’ Rights guarantees virtually all the established civil and political rights referred to by Karel Vasak as “the first generation of rights’.

Generational classification of rights must not be understood to mean that the earlier generation of rights falls into disuse giving place to a later generation, but that the earlier ones were recognized first, in point of time, before the later ones. The first generation rights are so firmly established and for so long that no serious government can claim to be unwilling or unable to enforce them. They incorporate the primordial rights of man and in the main, require governments to abstain from undue interference with them.

Behind some more exotic features of the African Charter, for instance peoples “rights and individual duties, lie the more ‘traditional’ civil and political rights which constitute the daily staple of regional, and in deed domestic, human rights mechanisms. It is also important to see that the lion’s share of the works of African Commission is devoted to the area of civil and political rights. This is not because the civil and political rights are more important than socio-economic rights. Rather civil and political rights do lend themselves more easily to supranational enforcement: their content is more clearly defined and demands of their remedies involve less infringement on the cherished concept of state sovereignty than socio-economic or peoples’ rights.

It is difficult to draw a hard and fast distinction between these two categories of rights. The only essentially political rights are those which enable an individual to participate in the exercise of political power and to gain access to public office in a country. As a rule these rights are enjoyed solely by nationals. Only the rights set out in the first two paragraphs of Article 13 of the Charter should therefore be included in this category. Other, purely civil rights are, nevertheless, also closely involved in the effective exercise of political rights. These include the rights to freedom of conscience, expression, assembly and association. Hence, a classification of the rights of the individual based on their civil or political nature can but be arbitrary. Therefore, with this caution in mind, we would rather prefer to discuss the scope and nature of specific rights generally recognized and guaranteed under this category. However, you should also be aware that this material will not go to the in depth analysis of the nature and scope of each rights recognized in the Charter for pragmatic reasons.

• The Right to Life and Integrity of Person (Article 4)

This is the first substantive right guaranteed in the Charter. Article 4 provides that:

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of is person. No one may be arbitrarily deprived of this right.

All international instruments emphasize the fundamental nature of the right to life, and its preeminence among other rights. The right to life has been observed to be characterized not only by the fact of being the legal basis of all other rights, but also by forming an integral part of all human rights that are essential for guaranteeing access for all human beings of all goods, including legal possession of those necessary for the development of their physical, moral and spiritual existence.

According to one writer, the individual’s right “to respect of his life” may be considered both as a civil right and an economic and social right. As a civil right, its sole counterpart will be a negative obligation of the states to refrain from any infringement of this or to prevent its possible infringement by a third party (duty of diligence). As an economic and social right, it will, on the contrary, entail a positive obligation of the state to ensure that the individual has an adequate standard of living by providing him, for example, with adequate food and medical care. Legally speaking, the right to life would thus appear to be a hybrid. However, the second aspect of the right can be adequately addressed under Article 16 of the Charter.

As regards the exact content or subject of the right to life, there are some open-ended issues in the ACHPR such as the expression ‘human being’, ‘arbitrary deprivation’, and ‘derogation’ aspect of the right. The African Commission has so far only ruled on the existence of violation of the rights under Article 4 without specifying the content of the right and the issue remains to be open. How the word ‘human being’ be used specially in determining the beginning and end of human life? The reply to this question has some important consequences for the legislation of such practices as abortion and euthanasia. Article 4 of the American Convention on Human Rights clearly guarantees the right to life “in general from the moment of conception.” So the position of African Charter seems not embark on this thorny topic and to leave the task of setting such matters to national legislation.

Article 4 is also some how different from the other instruments as regards its formulation of the permissible infringements of this right. It does not mention some exceptions to the right to life as capital punishment for serious crimes except the prohibition of arbitrary deprivation of the right. The Charter does not also define what constitutes arbitrary taking of life, neither has the commission yet given such definition. Does it refer to illegality, illegitimacy, injustice or inequity, unreasonableness, rule of law, due process of law or else? Therefore, it will be the task of the commission to clarify the limits of such terms of the Charter. One writer summarizes the prevailing international norm as:

It appears that the general understanding of arbitrary deprivation of life is extra-judicial killing which is well established in international law. The general consensus in the interpretation of the right to life in human rights instruments is that it is not derogable, except in certain circumstances judicially recognized or resulting from lawful acts of war or self-defense.

Therefore, though not mentioned in the African Charter, the right to life is not an absolute right given the internationally recognized norms on the interpretation of the right.

The African Commission has ruled on in a number of cases on the violation of the right concerned. It was in relation to three communications lodged in 1991 and 1992 against Malawi that for the first time, the African Commission concluded that there had been a violation of that right by a state party to the Charter. One of the communications alleged among other things that peacefully striking workers had been shot and killed by the police. The commission held that violation of Article 4 occurred when ‘peacefully striking workers were shot and killed by the police.’

In the communication lodged against Chad (1992), the Commission held that “The African Charter specifies in Article 1 that the state parties shall not only recognize the rights, duties and freedoms adopted by the Charter, but they should also ‘undertake . . . measures to give effect to them’. In other words, if a state neglects to ensure the rights in the Charter, this can constitute a violation even if the state or its agents are not the immediate cause of the violation. Thus, the Commission held that the actions could still be imputed to the state, it being responsible for ensuring the protection of the rights of those in its territory. Chad is, therefore, responsible for the violations of Article 4 for several accounts of killings and also disappearances which the government did not attempt to prevent or investigate afterwards.

This decision of the Commission is interesting. It recognizes the theory of Drittwirkung der Grundreht developed by German lawyers, according to which a state party to an instrument for the protection of human rights is responsible not only for violations of rights committed by its agents, but also for those committed by individuals (natural or judicial persons).

It was also in the tragic massacre/genocide of the Rwandans that the Commission found serious violation of Article 4. In its recent decision in the well known Ogoni case and its leaders including Ken Saro-Wiwa, the Commission held that there had been a violation of Article 4 of the African Charter by a state party (Nigeria) in relation to four communications alleging a number of violations to the detriment of two persons sentenced to death and eventually executed by the Respondent State despite the fact that the Commission had indicated provisional measures. Here is some important part of the Commission’s reasoning:

“Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of Article 4. The violation is compounded by the fact that there were pending communications before the Commission at the time of executions, and that the commission has requested the government to avoid causing any ‘irreparable prejudice’ to the subjects of the communications before the Commission had concluded its consideration. It is a matter of deep regret that this had not happened. The protection of the right to life in Article 4 also includes a duty for the state not to purposefully let a person die while in its custody. Here at least one of the victims lives was seriously endangered by the denial of medication during detention. Thus there are multiple violations of Article 4.”

In another recent decision (May 2000) against Sudan, the commission held that “denying people food and medical attention, burning them in sand and subjecting them to torture to the point of death point to a shocking lack of respect for life [and]… constitutes a violation of Article 4.”

Another important initiative of the African Commission regarding the right to life was the adoption of resolution in which it, inter alia, urged all states.

that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure the persons accused of crimes for which the death penalty is a competent sentence are afforded all the guarantees in the African charter.

and called upon all state parties

“that still maintain the death penalty to: a) limit the imposition of the death penalty only to the most serious crimes; b) consider establishing a moratorium on executions of death penalty; c) reflect on the possibility of abolishing the death penalty.

When we come to the right to integrity of the person (both physical and moral), it is also given protection together with the right to life under single provision, article 4.The right of every individual to physical integrity is generally interpreted as a right to the protection of the body from any violation not freely consented to, such as the removal of an organ from a living person or a mutilation as punishment. The recognition of this right is of particular importance in the African context given the prevalence of certain traditional practices such as clitoridectomy, excision or infibulations. These three types of female circumcision involve a painful procedure with sometimes grave, if not fatal, physiological and psychological consequences for the infant or adolescent undergoing it. Thus it constitutes the violation of physical integrity protected under Article 4.

There may be an apparent contradiction between this individual right and the practice of female circumcision as part of the tradition of African peoples as falling under Articles 20 (1), 22 & 18 (2) which makes it an obligation of the state to assist the family as the custodian of the traditional values recognized by the community. However, such conflict should be resolved in favour of protecting individual rights. This is what can be observed from the widespread practices, policies and laws of different African countries prohibiting such harmful practices. Article 61 of African Charter also refers to African practices consistent with international norms on human and peoples’ rights. Indeed, Article 21 (1) of the African Charter on the Rights and welfare of the Child shows firm stand of African states against harmful social and cultural practices. The same position is also held under the Protocol on the Rights of Women in Africa (Art. 5). Nonetheless, the challenge is the persistence of such practice in certain far from negligible parts of the African continent including Ethiopia.

• The Right to Dignity and Prohibition of Torture and Inhuman Treatment/ punishment (Art. 5)

Article 5 provides:

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, in human or degrading punishment and treatment shall be prohibited.

This provision essentially protects dignity- the only right in the African Charter described as ‘inherent in a human being’- and then lists certain examples of exploitative practices which would constitute violations of this right. Guaranteeing the right of every individual to the respect of the dignity is an expression of the fundamental idea on which the concept of human rights is based. The expression of such guarantee which is now self-evident carries high significance in a continent which experienced colonization and slavery, the later still a reality in certain regions.

The individual’s right to recognition of his legal status may be considered as the first expression of his dignity, legally recognized as a subject-not as an object- of rights and obligations.

The second part of Article 5 prohibits in general all forms of exploitation and degradation of the individual. The list of prescribed forms of treatment is not exhaustive. The usual reference to ‘forced or compulsory labour’ is not included. Forced labour, like servitude, is akin to the exploitation of man and falls under this prohibition. Moreover, this provision should also be understood in light of ILO convention No. 105 on the Abolition of Forced Labour adopted on 25 June 1957 to which a significant number of African states have acceded. It should also be read in conjunction with Article 29 (2, 4 and 6) of the African Charter which lays down the individual’s duty to serve his national community, to strengthen social and national solidarity and to work to the best of his abilities.

As regards physical or moral torture and cruel, in human or degrading treatments, they are expressly prohibited by the African Charter. Like the other general human rights instruments, the Charter does not define them, the reason usually being the difficulty of defining them certainly.

Amnesty International provides the following on the point of difficulty of defining torture:

There is a good reason why the concept of torture resists precise and scientific definition; it describes human behaviour and each human being is unique, with his own pain threshold, his own psychological make up, his own cultural conditioning. Furthermore, torture is a concept involving degree on a continuum ranging from discomfort to ill treatment, to unbearable pain and death, and a definition must resort in part to qualitative terms which are both relative and subjective.

Still, we can seek for some assistance from the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (Art.1 (1)). The African system can also take some inspiration from the jurisprudence of European Court of Human Rights.

The African Commission has found the violation of Article 5 from a number of communications against member states. Certain aspects of imprisonment have constituted violations of Article 5 such as overcrowding, beatings, torture, excessive solitary confinement, shacking within a cell, extremely poor quality of food and denial of access to adequate medical care. In another case the Commission held that article 5 prohibits not only torture, but also cruel, in human or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his/her will or conscience. Nonetheless, in none of the above findings, the Commission did attempt to give meaning to those crucial terms used under Article 5. Therefore, it yet remains for the commission and now the newly established court to articulate as to what amounts to torture, cruel, in human and degrading punishments or treatment. There is nothing wrong to take lesson from the experiences of the other regional systems on the same topic from the point of view of universality of human rights.

• The Right to Liberty and Security of Person (Art. 6)

Under Article 6 of the African Charter

“every person shall have the right to liberty and to the security of his person. No one may be deprived of his freedom, except for reasons and conditions laid down by law. In particular, no one may be arbitrarily arrested and detained.”

The right to liberty and security of the person implies physical liberty of the individual in the society in terms of prohibiting unnecessary arrests and detention. In other words, no one should be dispossessed of his or her liberty in an arbitrary fashion. To the extent that infringements are justified, they may also be done only in terms of legal rules established in advance. Therefore, this provision requires the two conditions for limiting the right: the requirements of legality and absence of arbitrariness. This manner of understanding, which is also recognized under Article 9 of the ICCPR, limits the extensive application of the claw back clause under Article 6 of African Charter. However, unlike Article 9 (sub articles 2 to 5) of the ICCPR, Article 6 of ACHPR does not make it clear what the rights of the person arrested or detained are, and does not provide for any right to reparation in the event of illegal arrest or detention. Neither does it regulate the conditions of detention nor prohibit imprisonment for failure to perform a contractual obligation. Hence, once again there is a need to refer to international human rights standards as to the level of procedural guarantees of detained or arrested person.

The African Commission has, though suffers from particular reasoned argument, ruled on the violation of Article 6. In one of its decision, it indicated that a detention without any charge being brought was to be regarded as arbitrary. In a communication against Nigeria alleging a number of violations by the Government of Nigeria, the Commission held that ‘ a decree that allows the government to arbitrarily hold persons critical to the government for up to three months without bringing them before the court violates the right protected in Article 6.’ By this decision, the Commission indicated that a ‘lawful measure, or taken under a law, can, nevertheless, prove to be ‘arbitrary’ by virtue of its content. When considering the length of detention without trial, the Commission held that ‘three years’ detention without trial or even three months may be sufficient to violate Article 6. Similarly holding individuals indefinitely will also breach the article.

• The Right of Fair Trial [Article 7] 426

Article 7 of the African Charter provides that:

1) Every individual shall have the right to have his caused heard. This comprises:

a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.

b) The right to be presumed innocent until proved guilty by a competent court or tribunal;

c) The right to defense, including the right to be defended by counsel of his choice;

d) The right to be tried within a reasonable time by an impartial court or tribunal.

e) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committees. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

The concept of the right to fair trial is inevitably bound up with the concept of justice. It is also a fundamental right which guarantees the judicial protection of rights. It has also some link to the concept of rule of law. According to European Court of Human Rights ‘it is the only human rights whose effective respect is itself a condition for effective monitoring of the implementation of all the other rights established by international instruments concerned.’

The right to fair trial consists, as envisaged under Article 7 (a) of ACHPR, first and foremost, of the right of all individuals to appeal to competent national courts or tribunals. An important issue here is the actual meaning of the world ‘appeal’. Does it guarantee a right of appeal to a superior court from the decisions of lower courts or tribunals or merely the right to simply seek a judicial remedy at a first instance? The nature of the right and decisions/practices of the Commission is inclusive of both rights. Please read a lot of communications lodged against Nigeria alleging the violation of this right in the 1990s!

Article 7 (1) (b) lays down the right to be presumed innocent until proved guilty . . . Presumption of innocence as an aspect of the right to fair trial is a concept applicable only in criminal proceedings. It means that the general burden of proof must lie with the prosecution, or in terms more appropriate for civil law system, that the court, in its inquiry into the facts, must find for the accused in case of a doubt. Nonetheless, the practice in most African countries, according to Nmehielle, contradicts the concept culminating in the reverse principle whereby it becomes the burden of the accused persons to prove their innocence. The Charter also requires that the guilt of the accused be determined by a competent court or tribunal. Though not yet determined in the jurisprudence of the Commission, ‘competent court’ means one in which the judges must be duly qualified, meeting all the natural and legal qualifications; and one, which is adequate, suitable and capable of administering law. The reasoning is that the court must be independent and impartial, as well as separate from the other branches of government.

Article 7(1) (c) recognizes the right to defense, including the right to choose a counsel of his choice.’ The purpose of the guarantee of the right to representation is to ensure that proceedings against an accused person will not be taken place without adequate representation of the case for the defense. In addition, it ensures the equality of arms between the accused and the prosecution. The problem here is that the Charter does not make any provision in terms of state-provided legal assistance which is one of the avenues through which indigent persons can have access to legal representation.

Article 7 (1) (d) guarantees the right of a person to be tried within a ‘reasonable time’. The purpose here is to protect all parties to court proceedings against excessive delays. As can be seen from the experience of other regions, the guarantee underlines the importance of rendering justice without delays, which might jeopardize its effectiveness and credibility. The reasonableness of the length of time of the proceedings both in criminal and civil cases depends on the particular circumstances of the case. There is no absolute time limit. Factors that are always taken into account are the complexities of the case, conduct of the applicant and the conduct of the competent administrative and judicial authorities. From the decisions of the Commission, this impartiality under Article 7 (1) (d) is in close relationship with independence. Thus, a court or a tribunal must be independent of the executive and also of the parties to the case.

Finally, Article 7 (2) prohibits ex-post facto laws, and also makes provision against retroactive punishments. It further outlaws transferred punishment to any other person who is not the offender. Such prohibitions are clearly important in ensuring due process in criminal proceedings. The second arm of Article 7 (2) dealing with the personal nature of punishment is very relevant to the situations in Africa which is known for its customary rule of collective liability. Thus, it will go a long way to address the victimization of the relatives (immediate or extended) of alleged offenders if the later cannot be reached.

Here something to be raised in relation to the right to fair trial under the Africa Charter is that unlike other human rights instruments, the Charter fails to guarantee some other pertinent aspects of that right.  For instance, the Charter does not make any provision regarding the right to public hearing (or in camera as the case may be) or the public pronouncement of the judgment. One writer notes the danger of this in that ‘dictatorial African governments are not unknown to establish secrete courts or tribunals, which conduct secret proceedings and pass secret judgments, the outcomes of which are usually predetermined’. In addition, the Charter does not make any provision on the right of an accused person to be assisted by an interpreter. This right may be very relevant in Africa where majority of the peoples are indigenous with languages different from the official language of many African states. Furthermore, the African Charter does not guarantee the right against self-incrimination, or freedom from double jeopardy, nor the right to compensation in violation of the right to fair trial or miscarriage of justice.

Being aware of the deficiencies of the Charter, the African Commission adopted a Resolution on the Right to Fair Trial on March 1992. The resolution goes beyond Article 7 of the Carter to provide for the guarantee of the right to legal aid for indigent persons, the right to assistance of a free interpreter, and the right to appeal to a higher court. Once again the resolution did not include the right to compensation for miscarriage of justice, freedom from double jeopardy and the right against self-incrimination. Therefore, on such and other areas of insufficiencies, it will be responsibility of the African Commission to apply international standards via the power vested in it under Articles 60 and 61 of the charter.

• Freedom of Conscience and Religion [Article 8]

Article 8 previous as follows:

Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of those freedoms.

Read Article 18 of the ICCPR and compare with the above African Charter provision.

Unlike Article 18 of ICCPR, Article 8 of the African Charter does not expressly recognize freedom of thought. It is stated that thought is to some extent a process, whereas conscience or opinion, is the result of this process. There are two approaches on the protection of thought. The first line of approach is that freedom of thought does not need to be protected and that it is only when thought is expressed that such protection is necessary (downstream protection). This is ensured under Article 9 of the African Charter. The second approach asserts that freedom of thought needs to be protected for itself (upstream protection) quite apart from the question of its possible subsequent expression. To permit the free operation of thought process means authorizing the free expression of thought. Freedom of expression is thus the corollary of freedom of thought; the two freedoms are inherently indissociable as the effective enjoyment of them is the fruit of the dialectical relationship between them.

Therefore, the right of freedom of conscience includes freedom of thought. It generally means the right to hold a belief. This belief may be religious or otherwise. The essence of the freedom of conscience is to enable an individual to hold a thought or belief that is independent of a state’s or other entity’s control per se.

Although Article 8 formally guarantees the right to freedom of conscience and religion, it does not specify what is meant by the profession and free exercise of religion. Article 18 of the ICCPR is quite exhaustive on this point as it sets the possibility for the individual” either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” It also recognizes the liberty of parents to ensure the religious and moral education of their children in this field in conformity with their own convictions. Freedom to profess and practice one’s religion could include freedom to maintain or change one’s religion or beliefs.

The last point relates to the scope of the freedom laid down under ACHPR. The freedoms of religion and conscience may only be subject to limitations when they are envisaged in their external dimension; in their internal dimension, on the other hand, they would appear to be guaranteed absolutely. Thus, their limitation will be made based on law and order. Though this forms part of the ‘claw back clause’, it seems to balance between freedom to profess and practice one’s religion on the one hand, and the protection of individuals or society from religious or pseudo-religious practices. The African Commission has not yet passed any ruling on the content of the law as embodied by Article 8 except few declarations of the violations of the right. In its decision concerning communication 56/91c alleging the persecution of the Jehovah’s witnesses by the Government of Zaire (arbitrary arrests, appropriation of church property, and exclusion from access to education), it merely stated that such harassment constitutes a violation of Article 8. In dealing with a case against Sudan, the Commission has held that freedom of religion- in that case, freedom to apply Sharia law has to be exercised in away that does not violate the equal protection of the laws. Sharia trials may not be imposed, and everyone should have the right to be tired by a secular court if they wish.

In virtually all the cases actually decided, the Commission failed to define what constitutes violation of conscience, or of the right to freely profess and practice one’s religion.

• The Right to Information and Freedom of Expression (Art. 9)

Please read Article 19 of ICCPR and Article 9 of ACHPR  and then make a comparison!

Article 9 of ACHPR provides that

“every individual shall the right to information. Every person shall have the right to express and disseminate his opinions within the law”.

Unlike the ICCPR provision, Article 9 of African Charter is drafted in general terms which misses some detail formulation of the right. The right of freedom of expression, while not above any other right by degree, has been identified as forming an essential basis for the existence and functioning of a healthy democracy in any society. The statement of the Inter-American Court of Human Rights in the Compulsory Membership Case on this right is persuasive. According to the court:

Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion . . . It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed . . . consequently, it can be said that a society that is not well informed is not a society that is truly free.

In one communication alleging the violation of this right by Nigeria, the African Commission stated:

Freedom of expression is a basic human rights, vital to an individual’s personal development and political consciousness, and participation in the conduct of public affairs in his country. Under the African Charter, this right comprises the right to receive information and express opinion.

The right to be given detailed references under Article 19 of ICCPR, namely, the freedomsd “to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

Therefore, effective application of Article 9 of ACHPR needs its correlation to the more elaborate universal instrument.

The other area of vagueness of Article 9 is the clause limiting the right, which only appears to apply to the individual’s freedom to express and disseminate his opinions, thus rendering ones right to receive information absolute. Nonetheless, this can not be logical interpretation as the right to information could be subject to limitation. The close correlation between freedom of expression and freedom of information points to the conclusion that the limitation laid down in Art.9 (2) logically applies to the whole Article.

Thus, the rights must be exercised ‘within the law.’ There is no further qualification in such limitation unlike the ICCPR (Art.19 (3)).

In this respect, the Commission invoked Article 27 of the Charter in support of its strict interpretation of the rights limitation clauses. In its view:

The only legitimate reasons for limitation to the rights and freedoms of the African Charter are found in Article 27 (2), that is, the rights of the Charter shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Moreover, the African Commission found the violation of Article 9 of the Charter in a number of communications against Nigerian Military government- imprisonment of journalist, proscription of publication and confiscation of newspapers.

In relation to Article 9 (2), the Commission said:

According to Article 9 (2) of the Charter, dissemination of opinions may be restricted by law. This does not, however, mean that national law can set aside the right to express and disseminate one’s opinions guaranteed at the international level; this would make the protection of the right to express ones opinion ineffective. To permit national law to take precedence over international law would defeat the purpose of codifying certain rights in international law and indeed, the whole essence of treaty making.

The outline of the above and some other case-law of African Commission reveals that the Commission has sought to denounce all unwarranted violations of freedom of expression and freedom of the press in particular which without any doubt are crucial vehicles for the promotion and protection of human rights in African continent.

• Freedom of Association and Assembly [Articles 10 & 11].

Freedom of association and freedom of assembly are twin rights that are separately guaranteed by the African Charter. The nature of these rights make them interrelated. They share the objective of allowing individuals to come together for the expression and protection of their common interests.

Article 10 provides

“every person shall have the right to freely form associations with others provided he/she abides by the law. No one may be compelled to join an association, subject to an obligation of solidarity provided for in Article 29”.

Freedom of association involves the freedom of individuals to come together for the protection of their interests by forming a collective entity which represents them. These interests my be of political, economic, religious, social, cultural, professional or labour union nature.

Article 10 recognizes the two inseparable aspects of the same freedom, that is, the right to free association and the freedom not to join an association. But the right against forced association is made to be supplemented by obligations of solidarity under Article 29. Does this relate to all grounds under article 29 or to the concept of social and national solidarity which uses the same term? C. Heyns argues that article 10 (2) refers to Article 29 (4), in view of the explicit use of the word ‘solidarity’ in Articles 10 (2) and 29 (4) and the fact that reference is made to the ‘obligation of solidarity’ in the singular form in Article 10 (2). Do you agree with this line of interpretation?

Finally, the scope of the individual’s right to free association is guaranteed “provided that he abides by the law”.

what will be the test of such restrictive law? Make a reference to the formulation under Article 22 (2) of ICCPR? Again read the 1948 ILO Convention concerning Freedoms of Association and Protection of the Right to Organize (Conv. No. 87/48).

Nonetheless, it remains for the African Commission to clarify the content of the right under Article 10: working definition of association, whether this right includes professional associations and trade unions.

As has been observed, the right to freedom of assembly complements the right to freedom of association. Freedom of assembly, however, goes beyond the meeting of formal associations, and includes individuals associating to assemble in their right as individuals. Freedom of assembly envisages holding of public meetings, mounting of demonstrations through marches, picketing and processions. One limitation that is of international acceptance is that the assembly must be peaceful. The other grounds of limitation are expressly stated under Article 11 ‘which are to be determined by law.’ But the question remaining open is how far such laws will restrict the exercise of this right (issue of manner, time, and place)?

• Other Rights

You are invited to read those remaining rights of civil and political nature under the ACHPR and compare their substantive content with the ICCPR and other regional human rights documents. These rights include: freedom of movement and allied rights (article 12), the right to political participation (article 13), right to property (article 14), and other family rights (article18).

Rights Guaranteed under African Charter

In considering the African charter, one’s attention is easily captured by its more unusual aspects: the concept of ‘peoples’ rights’ and individual and state ‘duties’, and the inclusion of all three ‘generations’ of rights in the same supranational human rights instruments. Nonetheless, it should also be noted that the African Carter guarantees a number of rights, which must be discussed and interpreted if they would ever mean anything to anybody. The interpretation of these rights would normally be geared towards translating them into practical realities that would serve the purpose they were meant to serve. Therefore, attempt will be made here to touch briefly on some aspects of the rights recognized and guaranteed vis-à-vis the other universal and regional instruments whenever necessary to do so. For convenience, the analysis will be made under different headings representing the different clusters of rights guaranteed in the charter: civil and political rights; economic, social and cultural rights and group or collective rights. However, before embarking on the discussion of specific rights under each categories above, it merits to say something on the obligation assumed by the members states to the Charter and secondly the well known principles of human rights: the principle of non-discrimination and the principle of equality as provided in ACHPR.

State Obligations under the ACHPR

Article 1 of the African Charter describes the obligation of states in respect of the rights recognized in the Charter as follows:

The member states of the organization of African unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this chapter [chapter I] and shall undertake to adopt legislative or other measures to give effect to them.

The primary duty created by the Charter is consequently the obligation placed on state parties to recognize and give effect to the rights in the Charter. The obligation placed on the state by a human rights instruments such as the African Charter is normally considered to have four components, namely to respect, to protect, to promote and to fulfill the rights recognized. First, ‘respect’ refers to the negative obligation on the state not to interfere with the right itself. Most classical civil and political rights possess such feature though we may have cases of overlapping. To ‘protect’ refers to the positive duty on the state to ensure that other individuals do not violate one’s rights. Of course, this is the horizontal effect of rights which aims to avoid human rights violations by private persons. For example, in one communication against the government on Chad (1992), the African Commission has held that “if a state neglects to ensure the rights in the Charter, this can constitute a violation, even if the sate or its agents are not the immediate cause of the violation.” Thus, it is an imputed liability for the inaction on the part of the state or its officials.

‘Promote’ refers to the positive obligation on the state to advance a culture of human rights. Promotional duties are discharged basically through human rights education to create awareness in the general public and thereby fighting anti-human rights attitudes and customs such as against certain groups of persons (minorities, women, children, and disabled). Lastly, to ‘fulfill’ relates to a positive obligation on the state to create an environment in which people actually have access to the social goods. This dimension of the obligation requires active state participation in the realization of the right concerned either by creating favourable conditions for the individuals or groups to realize the right guaranteed by him/her self (role of facilitating) or ultimately by direct provision of certain basic necessities when the individual/group is unable to realize it. Thus, it has a resource or financial implication on the states concerned. Most socio-economic rights are said to demand this aspect of state obligation. Yet, some civil and political rights have manifested in resource implication. A failure by the state to establish an independent and well-functioning court, necessary to ensure a fair trail, would be an example of a breach of this obligation.

Hence, from the above discussion, member states to the African Charter are expected to give recognition and effect to rights stipulated in the Charter. This requires the incorporation of the African Charter into their domestic legal system by an appropriate constitutional means. They are also expected to take further measures with a view to effectively enforcing and realizing the rights in the Charter. Of course, one unique feature of the Charter is that it does not incorporate the languages of ‘immediate application’ and ‘progressive realization’ as figured out in the two UN Covenants. So what do you think is the effect of absence of such terms/phrases?  Does it imply that all rights incorporated in the Charter are required to be applied immediately? Or should we interpret in light of the jurisprudences/approaches developed under the two UN Covenants? The former line of interpretation will be unrealistic given the level of economic development and social reality of many African nations. Therefore, what will be plausible is weighing the level of developments and socio-economic situation of a country and corresponding efforts made by the state concerned in the realization of the socio-economic and some civil-political rights with financial/economic implication. As regards those categories of civil and political rights which can be realized by mere forbearance of states, their immediate nature goes unquestionable.

The Principles of Non-discrimination and Equality

The principles of non-discrimination and equality are very closely linked In fact that the latter may be said to be a positive expression of the former. They are the two fundamental principles of the protection of human rights. In the words of the UN Human Rights Committee, non-discrimination, together with equality before the law and the equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights. Their fundamental character is also given recognition under the UN Charter (Articles 1 (3), 55 (6) & 76 (c), ICCPR (Art.2 (1), European Convention (Art.14) and American Convention (Art.1).

Similarly, the African Charter does not diverge appreciably from the provisions of the above quoted instruments. Non-discrimination is the first substantive right listed in the Charter, even before life. Both are among the categories/list of rights which must not be restricted.     

Article 2 provides:

Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or others status.

As in the case of Article 2 (1) of ICCPR, this is the non-autonomous provision, as it can only be invoked in relation to the implementation of a right protected by the African Charter. However, in Article 3, the Charter adds that “every individual shall be equal before the law” and that “every individual shall be entitled to equal protection of the law.” Unlike non-discrimination, the scope of application of equality before and in the law extends to all human rights and ,therefore, goes beyond the strict bounds of those rights guaranteed by the African Charter. Article 2 of the African Charter provides a detailed but not exhaustive list of the prohibited bases of discrimination. The open-ended nature of the list is reinforced by the words ‘or other status’ at the end of the article. The following grounds are ‘for example, not explicitly listed: gender, age, disability and sexual orientation; while the usual ground of ‘fortune’ (as opposed to ‘property’ in the ICCPR) is included.

Like the ICCPR, the African Charter does not contain any definition of discrimination which according to some writers such as Christof Heyns reinforced the width of the article. However, as regards a definitional issue, a useful pointer can be made to Article 1 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965. Indeed not every distinction is necessarily discriminatory and equality of treatment is not synonymous with identicality of treatment. During the elaboration of Article 2 of the ICCPR for instance, it was emphasized that the adoption of special measures for the advancement of a particular disadvantaged social groups should not be considered as a form of distinction within the meaning of this provision. The UN Human Rights Committee in its General Comment stated that not all different treatment necessarily constitutes discrimination if the criterion for such discrimination is reasonable and objective and if the aim is legitimate under the covenant. Thus, in order to redress past wrongs, effect equity and make up for ingrained disabilities, it may be just to apply affirmative action i.e. reverse or positive discrimination in order to confer benefit to persons who justly deserve but would otherwise be denied.

Therefore, the principles of non-discrimination and equality as formulated by the African Charter should also be interpreted in the same way, thus permitting state parties to treat the individuals under their jurisdiction differently, yet not in a discriminatory fashion within the meaning of that instrument. Hence, measures which benefit a particular category of persons traditionally disadvantaged such as women, indigenous and minority peoples, etc should not be regarded as contrary to the principles of non-discrimination and equality proclaimed by articles 2 and 3 of the African Charter. It is the purpose of these measures i.e. establishing true de facto equality which would make them non- discriminatory.

The reference of ‘ethnic’ criterion is also taken as an interesting addition by the African Charter, which thus takes due account of an important sociological aspect of virtually all African states.

Furthermore, it should be noted that the African Charter reinforces the basic prohibition of non-discrimination under Article 2 by additional statements under Articles 18 (3) and 28 of the Charter. Even the interpretation of Article 12 (4) (5) of the Charter by the African Commission in the context of expulsion of foreigners covers the principle of non-discrimination. In these two cases, one involving Zambia and the other Angola, the Commission found that mass expulsion of foreigners without access to the courts constituted a violation, inter alia, of Articles 2 and 12 (4) & (5).

In another case which alleged the expulsion from Rwanda of Burundian nationals who had been refugees in Rwanda for many years, the Commission held that there was “considerable evidence . . . that the violations of the rights of individuals had occurred on the basis of their being Burundian nationals or members of the Tutsi, ethnic group and . . . this clearly violated article. 2.  A similar decision was also given in the allegation by a Senegalese non-governmental organization on behalf of 517 nationals of West African countries who had been expelled from Zambia because of their illegal presence in the territory of that state. None of them had any opportunity to appeal against the decision to expel them [Communication 71/92].

In a more recent decision relating to a number of communications lodged against Mauritania, the Commission pointed out that the elimination of all forms of discrimination was a common objective of Article 2 of African Charter and of the Declaration of the Rights of People Belonging to National, Ethnic, Religious or Linguistic Minorities (General Assembly res. 47/135 of 18 December 1992), concluding that:

“for a country to subject its own indigenes to discriminatory treatment only because of the colour of their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter and of the letter of its Article 2 [See communications 54/91, 61/91, 98/93, 167/97 to 196/97  210/98].”

The Distinctive Feature of the African Charter

The African Charter according to Davidson differs considerably from other regional counterparts, both in the catalogue of rights protected and in the means of implementation and protection. This is because it was drafted to take account of African culture and legal philosophy, and is specifically directed towards African needs which can be easily observed from the preamble. Ouguergouz, on the other hand, tells us a remarkable resemblance between the African Charter and the Universal Declaration. The preamble to the African Charter reaffirms the pledge of African states to promote international cooperation “having due regard to the Charter of the UN and the UDHR”. Both also incorporate the civil and political and that of socio-economic rights in the single instrument. Nonetheless, such approach was not followed in the same line in the subsequent binding UN human rights instruments [ICCPR & ICESCR). Therefore, the first area in which the African Charter differs from others is that not only does the Charter seek to protect individual civil and political rights, it also seeks to promote and protect within the single instrument, economic, social and cultural rights and a category of certain third generation rights. Close scrutiny of the African Charter shows us that both categories of rights are in dissociable from one another in both conception and universality [preamble, Para. 7].

The civil and political rights which are protected by Articles 2-15, comprise the traditional range of rights that are included in the ICCPR and the other regional instruments. One particular freedom that represents a particular African concerns is article 12, which prohibits the mass expulsion of non-nationals and is aimed at national, racial, ethnic or religious groups. This provision was included after the experience of a lot of events of mass expulsions in many African countries in the 1970s. Moreover, the African Charter alone lays down the principle of personal punishment [Art. 7 (2) and the right of all to equal access of all public property and services [Art. 13 (3).

The economic and social rights contained in the Charter also largely reflect the range of such rights in other international instruments. However, there are a number of additions which are worthy of note. The right to education, for example, in article 17, is supplemented by a duty upon the state whose obligation is to promote and protect the ‘morals and traditional African values recognized by the community.’ Article 18 of the Charter also reflects similar African concerns. Art 18 (3) also contains one of the most comprehensive clauses concerning the prohibition of discrimination against women by providing that ‘the state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.

The African Charter is the only regional human rights instrument to incorporate what are called third generation rights or ‘rights of solidarity.’ In protecting the right to self-determination, the Charter not only traverses the familiar ground of the UN covenants it also includes rights such as the right to economic, social and cultural development with due regard to their freedom and identify and in equal enjoyment of the common heritage of mankind [Art. 22]. The Charter also includes the right of peoples to national and international peace and security (Art. 23) and to a general satisfactory environment favourable to their development (Art. 24). Clearly, these rights impose obligations on states not only to order their internal affairs in such a way as to preserve to improve environmental factors, but they also require that they pursue particular forms of foreign policy calculated to achieve such and end. Therefore, by devoting six articles to the rights of the people in general, the African Charter thus seems to reflect a very special conception of human rights, according to which “the reality and respect of peoples’ rights should necessarily guarantee human rights.” We will come back with some more details on the scope and contents of the rights of peoples’ under the African Charter.

The African Charter is also known for its incorporation of the concept of individual duties. This concept was first included in the non-binding American Declaration of the Rights and Duties of Man of 1948 and to some extent under article 29 (1) of the UDHR. However, it is only in the African Charter that duties are imposed on individuals as a matter of international legal obligation. This begins with the preambular paragraph 6 which mentions that “the enjoyment of rights and freedoms also implies the performances of duties on the part of everyone. Though open to debates and criticisms, the reason for this is that the African sense of family and community places great emphasis upon the individual’s responsibility to both groups. Most of the rights contained in the Charter thus have a correlative duty attached to them.

Another distinguishing feature of the Charter relates to its shortcomings and imperfections vis-à-vis other human rights instruments. It is said that the substantive provisions of the African Charter are equivocally phrased or uses very general terms which may give rise to varying interpretations and avoidance of the obligations under the Charter. Moreover, extensive use is made of ‘claw back’ clauses that seem to make the enforcement of a right dependent on municipal laws or at the discretion of national authorities. Articles 8-13 all provide for enjoyment of rights within certain limitations such as ‘subject to law and order’ (Art. 8), ‘within the law’ (Art. 9 (2), provided that the individual abides by the law (Art. 10 (1) and Art. 11-13 continue in similar vein. However, the recent interpretation of the African Commission on such limitation clause in a communication against Nigeria (1993-96) is highly innovative in asserting the supremacy of international human rights.

Another distinguishing feature of ACHPR is the absence of provisions permitting derogation from (suspension of) the rights protected in exceptional circumstances. Is this event a simple oversight by the authors or a desire to unequivocally stress the fundamental nature of all rights guaranteed? According to one author, it is hard to imagine that the intention of the authors of the African Charter was to deprive the African states of any means of suspending the rights recognized. It would, therefore, have been more prudent to consider placing strict restrictions on this power and asserting, for example, the non-derogable nature of certain rights considered to be fundamental. The practice of African Commission on the same issue will be considered later on.

Last, but not least, when we come to the differences relating to international aspect, the African system is known for long absence of judicial safeguard, that is, unlike other regional systems, there has been no court system to settle disputes between states or to rule on individual grievances of human rights violations. The reason for this, according to one African jurist, is that Africans tend to focus on reconciliation and consensus as a means of setting disputes, rather than upon contentious procedures. One writer (Ouguergouz) adds nearly the same reason in that the promoters of a mechanism for safeguarding human rights and freedoms in Africa were therefore duty bound not to totally ignore the rule of the principle of sovereignty and its direct corollary, the predilection of African States for political settlement of their disputes. Therefore, the preference to African conception of dispute settlement based on negotiation and conciliation rather than an adversarial or confrontational system and the widespread reluctance among OAU member states to subordinate themselves to supranational judicial organ were the reasons for long absence of judicial mechanisms. Nevertheless, the long waited judicial system has recently put in place by an additional protocol to ACHPR which established the African Court of Human and Peoples Rights.

The African Charter on Human and Peoples’ Rights (ACHPR)

The aim here will be to describe the movement to promote human rights in Africa, which served as a prelude to the adoption of the African Charter on Human and Peoples’ Rights. While it is hard to assert that the efforts deployed in this field were decisive to the emergence of this piece of legislation-certain events playing the role of catalyst in this process-the favourable effects of these events cannot be underestimated. The process of awareness set in motion and orchestrated by certain non-governmental organizations, including some African ones, as well as many UN initiatives, in fact contributed substantially to the creation of a favourable climate for nurturing the idea of regulating human rights in Africa. Therefore, from the late 1970s onwards, a number of important events define the OAU move to increased attention to human rights. Encouragement at the UN level for regional human rights mechanisms, NGO lobbying and a recognition by some African leaders themselves that human rights in another state were also their concern led into the adoption by the OAU of the ACHPR. Thus, it is noteworthy to highlight the historical background surrounding the codification and adoption of ACHPR before embarking on the detail examination of its normative contents and institutional mechanisms.

Historical Background and Drafting Process of ACHPR

Before going to the outlining of the stages of development in the drafting and adoption process of the ACHPR, a brief sketch of the underlying reasons leading to the formation of African human rights mechanisms is a question of priority. Scholars proffer different reasons behind such initiative. According to professor Umozurike, a onetime chairman of the African Commission, development on the international plan at that time favored an idea of an African human rights mechanism. These developments included the Helsinki Final Act of 1975, signed by the Untied States, Canada and thirty Western and Eastern European Countries, which emphasized respect for human rights, and the emphasis placed thereafter by the next United States president, Jimmy Carter, on human rights in the international relations of the United Sates.

The Carter administration used human rights as a criterion for allocating economic aid to third world countries. The attempt to make the allocation of such aid conditional on respect for human rights during the renegotiation of the Lome Agreement should be seen in the same light.

Okoth-Ogendo, on the other hand, contends the decision to establish the mechanism was taken not because there was a juridical void with respect to the promotion and protection of human rights at the continent or domestic level. He listed three reasons for the establishment of the mechanism. First, because the Charter of the OAU affirms commitment to the UN Charter and the Universal Declaration, the ratification by African states of those instruments in addition to other human rights instruments, imposed an obligation for the promotion and protection of human rights. Second, there was no existing machinery at the regional level for institutional coordination, supervision, or implementation of efforts towards the promotion and protection of human rights, despite international commitments to that effect. Thirdly, the need to develop a scheme of human rights, norms and principles founded on the historical tradition and values of African civilizations.

One may inclined to agree with the reasons given by Mr. Okoth-Ogendo, which confirm that there was in deed a juridical void in the promotion and protection of human rights in Africa. However according to another scholar, it was above all a series of events in the continent of Africa itself which was to lead directly to the decision of African rulers to lay the foundations for regional human rights legislation. The focusing of international public opinion on the , to say the least, singular conduct of some of their colleagues meant that African leaders could no longer remain indifferent as they saw Africa’s image in the world being tarnished still further. They were duty-bound to react to the many abuses of human rights, for e.g. in Uganda, Equatorial Guinea, Central African Empire, and so on.

Now the next step will be examining the role of various groups, especially non-governmental organizations (NGOs) and governmental organizations at the stage of preparatory works and the final adoption of the African charter.

• The Role of Non-governmental organizations

The Role of Non-governmental organizations, both international and African-based in the initiative of African regional human rights development (for normative as well as institutional set up) was of some immense significance. The first Congress of African Lawyers was held in Lagos, Nigeria, from 3 to 7 January 1961 by the International Commission of Jurists. The Congress was attended by 194 lawyers from 23 African states and 9 states from other continents. The topic chosen for this first event, the “rule of law”, was particularly interesting in the transitional phase through which the continent of Africa was then passing to self-rule from long years of colonial domination. The resolution was adopted at the end of the conference-widely known as the “Law of Lagos”. The highly significant paragraph 2 of this law states that a government can only maintain adequately the “rule of law”: if the legislature genuinely represents the majority of the people. It continues to state another crucial part of the resolution in paragraph 4 as:

“That in order to give full effect to the Universal Declaration of Human Rights of 1948, this conference invites the African Governments to study the possibility of adopting an African Convention of Human Rights in such a manner that the conclusions of this conference will be safeguarded by the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory states”.

In another later Conference of Jurists from French-speaking African countries convened in Dakar from 5 to 9 January 1967, the participants adopted the “Dakar Declaration” in which they, inter alia, affirmed:

that once the problems resulting from heritage of the colonial era have been isolated, it becomes apparent that the basic requirements of the Rule of Law are not essentially different in Africa from those accepted elsewhere; that the economic, social and cultural difficulties African faces today cannot justify the abandonment of the fundamental principles pf the Rule of Law, and that it is the duty of all jurists to make these principles the dynamic concept through which progress is achieved.

The conference also stressed the independence of the judiciary for the best safeguard of legality and ensuring an equitable balance between the requirements of the public well-being and the rights of the individual. In another seminar held in Dares Salaam (Tanzania) in September 1976 by the International Commission of Jurists on the topic of human rights in one-party states, it was recognized that, under a single- party regime, the limitation of political activity to a single party implies restriction of the freedoms of association and expression.

The year 1978 may be regarded as a pivotal moment in the process of the conceptualization of human rights spearheaded by the African intelligentsia. A more comprehensive approach to human rights emerged. The conclusions of two conferences of African jurists are worth examining in this light.

The former of these was held at Butare (Rwanda) from 3 to 7 July 1978 on human rights and economic development in Francophone Africa. Two of the four topics considered were the relationship between human rights and economic development and the effectiveness and appropriateness of international initiatives for the promotion and protection of human rights. As regards the former, the majority of the participants recognized that the lack of economic resources in many Francophone African countries did not justify lack of respect for civil and political rights and that the guarantee of social and economic rights implies recognition of the right to development as a fundamental human right.

The Dakar Colloquium on Human Rights and Economic Development, held in September 1978, did reach a greater number of conclusions; some of them were more elaborate. The first of these relates to the development. Development was viewed as a right, whose essential content is the need for justice, in the national as well as international context. It was held to be both a collective and an individual right. As a second conclusion, the participants stated that human rights could not be reduced merely to political and civil rights, but also included economic, social and cultural rights. It is the recognition of the indivisibility and interdependence of human rights in Dakar in 1978 that African jurists turned a new corner in no longer being prepared to justify systematic human rights violations by the needs of economic and social development. Therefore, the participants finally recommended that a human rights convention shall be concluded at the pan-African level, that sub-regional human rights institutes should be set up to raise public awareness, and that one or more inter-African human rights commissions should be created composed of independent magistrates responsible for hearing all complaints relating to human rights violations.

What do you think is the role/significance of such NGOs in the process of conceptualization and codification of ACHPR? You may also make a reference to subsequent sections to reflect more, if any!!

• The Role of Inter-Governmental Organizations (UN & OAU)

When we talk about the role of governmental organizations in the process of development of African Charter, the contribution of UN and OAU attracts close attention. On the basis of two resolutions (GA Res. 926 (x) 4 ECOSOC Res. 605(XXIL) and the invitation of the Government of Senegal, the United Nations Secretary-General arranged a series of regional seminars in Dakar (Senegal) from 8 to 22 February) 1966 on human rights in the developing countries. The participants proceeded to examine the human rights situation in the developing countries and also to review the institutions and procedures for the promotion and protection and human rights in those countries. However, the emphasis on sovereignty and priority on the setting of the applicable law took away the success of this seminar. In 1967, the Nigerian delegation to the UN Commission on Human Rights initiated the possibility of creating regional commissions for the protection of human rights where there were none at present. Yet here again a consensus was reached that the regional human rights commissions could only be established on the direct and exclusive initiative of the states in the region concerned and could not be imposed on them from outside. The matter was again raised in Cairo (Egypt) seminar of the commission on Human Rights in 1969. The participants attending the seminar unanimously supported the establishment of an African Commission on Human Rights with mainly promotional mandates. Similar efforts continued in the beginning of 1970s with the involvement of UN and its specialized agencies.

While the initial seminars and debates focus on institutional mechanism for the promotion and protection of human rights in Africa, the later phase of the initiatives in the 1970s stressed the need for the adoption of an African Convention on human rights. To this end, it was stated that the instrument to be set up should not be a mere carbon copy of existing international conventions, but should be flexible and pragmatic and reflect African’s peculiar problems, of which economic underdevelopment was the most important. The last part of this sentence of itself summarizes the concerns of African leaders at the time and partly explains the OAU’s lack of commitment in this attempt to institutionalize the protection of human rights throughout the continent.

As per the resolution of the UN Commission Human Rights (March 1978) and its approval by the General Assembly (December 1978) on the regional arrangement for the promotion and protection of human rights, a seminar of African leaders took place in Monrovia (Liberia) from 10 to 21 September 1979 and drew up some proposals which were noteworthy for being concrete. The Monrovia Proposal placed emphasis on structural issues than rules, that is, laid the foundations for an African Commission on Human Rights by stipulating its membership, its organization, the applicable standards and, above all, functions.

Therefore, it was on the basis of the above series of efforts that the creation of African human rights regime assumes its last phase of success. These involved two levels of development, according to Ouguergouz- the technical phase in which independent experts played a preponderant role, and the diplomatic phase, in which different categories of government representatives in turn considered the draft convention prepared by experts and finally adopted it.

In the Summit of African leaders which took place at Monrovia in 1979, the leaders declared themselves conscious of the fact that a political regime which protects fundamental human rights is indispensable for mobilizing the creative initiatives of the African peoples for economic development. However, it was the invasion of Ugandan territory by Tanzanian troops which prompted the conference to concern itself seriously with the question of human rights in Africa. More importantly, it was in this resolution (Res. AHG/Doc. 115 (XVI) that the Summit invited the OAU Secretary-General to organize as soon as possible in an African capital a restricted meeting of highly qualified experts to prepare a preliminary draft ‘African Charter on Human and Peoples’ Rights’ providing, inter alia, for the establishment of bodies to promote and protect human and peoples’ rights. In some measure, this resolution fixes position of the African leaders regarding the serious events recently experienced in the continent. The meeting requested was convened four months later in Dakar from 28 November to 8 December 1979. Some twenty African experts were invited to attend this meeting, presided over by the Senegalese Judge Keba Mbaye.

The opening address by President Senghor of Senegal merits consideration in as much as it lays down the philosophy which was to guide the experts’ work. Having underlined the role played by the principle of sovereignty in the vicissitudes of the continent, he urged the experts to use their imagination and draw inspiration from African traditions, keeping in mind the values of civilization and the real needs of Africa. He then revealed what he meant by this. For him, the right to development deserved a particular place in that it embraces all economic, social and cultural rights as well as civil and political rights. And he unambiguously added that provision should also be made for a system of “duties of individual”, in harmony with the rights granted to the individual by the society to which he belongs. In conclusion, he recommended that, if the “Homo africanus” of tomorrow was to be fashioned, then it would again have to be a case of “assimilating without being assimilated” and of borrowing from modernity only that which was compatible with the deep nature of African civilization; in the area of human rights, irresponsibility and immorality should carefully be avoided.

The diplomatic process was set in motion by a first Ministerial Conference held at Banjul (Banjul I) from 19 to 15 June 1980 to consider the draft Charter adopted by the meeting of independent experts. During this meeting, the government delegates only managed to agree on its preamble and the first eleven Articles. In its second session held in Banjul (Banjul II) from 7 to 19 January 1981, the delegates finally adopted a text consisting of 68 Articles which, apart from certain modifications of style and substance, was the same as the draft prepared by the independent experts. This accelerated work of government delegates was attributable, according to Ouguergouz, to the two events surrounding the meeting: the assassination of the Liberian Leader, Dr. William Tolbert, the then president of OAU and the news of arrest of the delegates from Upper Volta shortly after attending the Banjul meeting.

The draft text was transmitted to the OAU Committee of Ministers, which considered it at its 37^th session, held in Nairobi, Kenya, from 10 to 21 June 481. The Ministers were unable to agree on the document as finalized especially on the mandate of the African Commission on Human and Peoples’ Rights granted under Article 45 of the Draft Charter. Nevertheless, the document was submitted as it stood to the Summit Conference due to be held a few days later in the same city. It was therefore, in Nairobi, from 24 to 28 June 1981, at the 18^th Assembly of OAU Heads of Sate and Government that the final phase of a process begun 20 years earlier was played out. Thirty one African leaders attended the Summit. A the conclusion of its meeting, the Gambian President, Dawda Jawara proposed the adoption of the final version of the African Charter. Then, the Summit with no debate or formal vote on any resolution, adopt the African Charter on Human and Peoples’ Rights (ACHPR).

The African Charter on Human and Peoples’ Rights, a product of the OAU, has been ratified by all African States and is the premier African human rights instrument. The charter in many ways reflects the norms which underlie international human rights law, but in some respects-notably peoples’ rights, the inclusion of socio-economic rights and the emphasis on the recognition of duties- the Charter is uniquely African. Therefore in what follows, the focus is mainly on the rights guaranteed and some unique features of African Charter.