Refugees and internally displaced persons (IDPs) are other vulnerable groups deserving some protective regimes. This is because in the first case being outside the territory of their country, they are unable or unwilling to receive the protection from their national states, while in the second, even if within territorial limit of their states, they are placed in especially difficult situation due to dislocation from their normal or habitual residences.

Africa is the first continent which established regional arrangement for the protection of refugees. The international community had managed to have Refugee Convention in 1951 and its additional Protocol in 1967. However, backgrounds and scope of protection of these UN instruments were not found to be appropriate to refugee problems out of Europe.

Some of the consequences of the solidification of African Colonial borders in line with the principle of uti possidetis were internal strife, large scale dislocation, and the movement of people across these borders. Although the national war of liberation accounted for a substantial number of refugees in the 1960s, many more fled ‘explosive internal, social and political situations’ which predated independence. By 1964, the influx of refugees from Rwanda into Burundi, the DRC, and Uganda had spurred the OAU into action, first to the establishment of a ten member Refugee Commission to investigate the refugee ‘problem’ in Africa, and later setting in motion the drafting of a regional treaty. The reasons for having such regional regime was justified on the ground that the 1951 UN Convention on Refugees was European in focus and not suitable for the African situation, particularly as many refugees were seen at that stage as being the result of the fight for independence. A regional High Commissioner for Refugees was also contemplated although it was resisted by the UNHCR and abandoned later on.

This process culminated in the adoption by the OAU Assembly on 10 September 1969 of the OAU Convention Governing the Specific Aspects of Refugees in Africa (OAU Refugee Convention). It was entered into force on 20 July 1974.

• Definition of Refugee in the OAU Convention and Major Departures

It has been argued that the concept of refugee as defined in the statute of the UNHCR and UN Convention of 1951 is not universal and creates problems when it comes to its application to new refugees from new areas and notably in the Third World. The following are refugee definitions as provided under the UNHCR statute, UN Convention of 1951 and the 1969 OAU Refugee Convention respectively.

Statute of UNHCR, Article 6, Para, B,: the UNHCR can deal with any:

Person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of his nationality, or if he has no nationality to return to the country of his former habitual residence.

UN Convention of 1951 (which entered into force in 1954) Article 1(a):

As a result of events occurring before 1^st January 1951 and owing to well-found fear of being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it.

Article 1 the OAU Convention provides that:

The term ‘refugee’ shall mean every person who, owing to will-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and… (except the beginning clause, all are similar to UN Refugee definition….).

The term ’refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave place outside his country of origin and nationality.

Three of the most important limitations of the UN Refugee Convention may be traced to the Socio-political context of its adoption, which was dominated by the effects of the aftermath of WWII and the beginning of cold war. First, the basis of qualification for refugees was limited to a ‘well-founded fear of being persecuted for reasons of ….’ ‘Fear’ is a subjective requirement, which needs to be assessed individually for its ‘well-foundness’. Apart from the individualistic focus, the list of grounds on which one could earn the status of a ‘refugee’ is very restrictive and also does not take into account other factors (such as natural disasters or internal wars).

Secondly, a time-limit was included in the UN Refugee Convention. The ‘fear’ had to be ‘as a result of events occurring before 1 January 1951’, underling the close link between the Convention and the war that preceded it. A third limitation, geographical in nature, was included as an option to be adopted at ratification (or accession).

In light of the above, it is not surprising that African states saw the convention as a ‘European instrument’ The perception of exclusion was exacerbated in the 1960s, when it became clear that, in Africa, refugee problems continued and, most often started well after 1951. Due in the main to Africa’s criticism and its efforts to adopt a separate convention, the UN in 1966 adopted a brief protocol to the 1951 Convention which entered into force in 1967. The protocol dispensed with the temporal and geographical limitations of the 1951 Convention. From 1967 on, then, the Convention applied equally to all who qualified for refugee status. However, the restrictive definition of ‘refugee’ was left in tact.

Therefore, after the adoption of the 1967 protocol, African efforts to elaborate a separate UN instrument dealing with refugees were channeled into the adoption of a complementary regional instrument (OAU Refugee Convention recognizes the two UN instruments in its preamble). Thus, to understand the added value of OAU Convention, one should differentiate between the global and regional systems of refugee protection.

The OAU Refugee Convention mirrors exactly the wording of the UN Convention, but expands the definition of the term ‘refugee’. The global instrument requires a ‘well-founded fear of being persecuted’ as a fundamental precondition for refugee status. In contrast, the OAU Refugee Convention extends the term to include anyone who is compelled to flee a country of residence ‘owing’ to external aggression, occupation, foreign domination or events seriously disturbing public order….. It is no longer the subjective fear of the individual alone, but also objectively  ascertainable circumstantial compulsion that may give rise to ‘refugee’ status. ‘Fear of persecution’ places the emphasis on person’s beliefs, and not on the socio-political context.

The UN Refugee Convention’s definition presupposes that refugees will be screened individually in order to establish whether they have a ‘well-founded fear of persecution’. Such a system is obviously only manageable when persons flee on their own or in small groups. However, in the case of mass migrations, the application of such an individualized test becomes impossible. Mass migrations necessitate an approach which uses cumulative and objective factors to determine refugee status. Such factors are events ‘seriously disrupting’ public order and ‘foreign domination’ (Art. 1(2)) of OAU Refugee Convention).

The grounds in the OAU Convention on which refugees lose their status (‘cessation of status’) or on which they are barred from qualifying as refugees (‘exclusion from status’) are once more derived from the UN document. What are the three additional categories of exclusion or cessation under the OAU Refugee Convention.(See OAU Refugee Convention Arts. I (4) & I (5)).

The OAU Refugee convention is explicit about the obligation of states to grant asylum (Art. II (2)), in contrast to the UN Convention which is silent on the issue. However, the way this right is framed and the requirement of compliance with internal laws renders asylum provision more of recommendatory to states. Further, the non-refoulement principle (the right not be sent back or expelled) appears to be absolute (Art. II (2)). The OAU Refugee Convention also expressly includes reference to voluntary repatriation in Article 5.

Its adoption being resulted from the inter-state ramifications of refugee moments than from a concern for the ‘rights’ of refugees, the OAU Convention reinforces notions of state security and sovereignty. It determines that a refugee has to conform to the law in the state of refugee, and that he/she has a duty to ‘abstain from any subversive activities against any member state of the OAU (Art. III (1)).

Another innovation is the duty placed by the OAU Refugee Convention on the country of origin in relation to returning refugees: state must grant full rights and privileges to returning nationals, and must refrain from any sanctions or punishment against them (Art. III (3) & III (4)).

Though the OAU Refugee Convention has addressed regional specificities and nature of refugee problems in Africa, it is said to be not adequate document. It is argued that it is ‘entirely silent’ on issues of mass influx and the procedure for determining who is a refugee is largely left to states discretion. In addition there is a suggestion that the principle of non-refoulement can be limited if the individual acts contrary to the principles of the convention.

It is also said that the Convention does not take a strong human rights approach. There is no real mention of rights of refugee beyond those discussed above (asylum and non-refoulment), it does not deal with women and restricts freedom of movement and rights of expression and association. It does not have provisions relating to the quality of life of refugees (food, health, housing, etc). It does not have its own enforcement mechanism and depends on external organs (UNHCR). Therefore, with a view to filling some of the gaps in the convention it is suggested that the convention should be considered together with the guarantees under ACHPR, ACRWC and APRW.

• Position of Internally Displaced Persons (IDPs)

Internally displaced persons (IDPs) are distinguished from refugees and have a challenge of their own, even more than the former. According to the 1998 UN Guiding Principles on Internal Displacement, IDPs are defined as:

‘Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effect of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized state border’.

IDPs are persons who are forced or compelled to leave their homes or normal residence as a result of one or more of the causes listed above. They are people within the territorial limit of their national state (no border crossed).

The number of IDPs has been increasing tremendously in Africa compared to refugees. However, there is no any international or regional instrument addressing the special situation of IDPs though they are facing no less difficulty (even more) than refugees in their home countries. In this regard, human rights law is particularly important but also suffers often from limitations where states can derogate from certain rights during times of war or other public emergency situations. Yet the responsibility for their protection lies with home state /national government as they are people within the territorial limits of concerned state.

The 1998 UN Guiding Principle on Internal Displacement is the collection and restatement of principles embodied in human rights law, humanitarian law and refugee law. It recommended the prevention of internal displacement, and the protection of those who found themselves internally displaced, noting that states bear the primary responsibility in both regards.

Thus, IDPs are persons in difficult situation due to dislocation from their homes or habitual residence as a result of one or more natural or man-caused factors but within the territory of their country. However, internationally, no legal (binding) instrument and institution/ organ exist to address their needs, except any existing machineries under the national system. In some counties such as Burma they are denied access to international humanitarian relief. So sovereignty of states will continue to pose more sufferings to IDPs.

African Union has been in the process of drafting a regional IDP convention taking the gravity of the problem in the continent. If successfully adopted, it will be the first ever seen document and is hoped to address and minimize the protracted sufferings of Africans displaced from their homes due to natural disasters or other man-made causes principally internal conflict, generalized violence, violations of human rights or developmental activities.

Sexual (gender) inequality is a global reality. Women as part of human being are entitled to benefits and protections under the general human rights instruments (both UN and regional) such as the equality and non-discrimination clauses, and other fundamental guarantees. However, the reality has been otherwise. Women have been subjected for long time to discrimination, denial of access to basic rights (education, health, property, employment etc), and victim of a wide range of discriminatory and harmful practices (domestic violence, early marriage, FGM, etc).

Women in the African context are even more exposed to differential treatment and a lot of disadvantages. It is stated that African public and private life have been and are dominated by men. Women’s participation in most walks of life has been undermined.

These are among the limited reasons which lead to the separated treatment of women’s rights and eventual adoption of separate documents. The two basic documents of paramount importance to women’s rights are the UN Convention on the Elimination of All forms of Discrimination against women (CEDAW) and the recently adopted African Protocol to the African Charter on Human and Peoples Rights on the Rights on the Rights of women in Africa (APRW). Thus, the purpose of this subsection is to highlight the importance and innovations of APRW in light of the global and preexisting African instruments (CEDAW).

Women’s Right under the OAU/AU Framework

There has been a repeated criticism that the OAU Charter and the ACHPR gave inadequate attention to women in Africa. The first does not contain any mention of gender, while the later raised women’s rights specifically under a single provision (Article 18). However, OAU Charter’s silence was later remedied by a series of resolutions and decisions addressing the promotion and protection of women’s rights in Africa. The most underlying factors behind such initiatives were said to be: the participation of the OAU in international conferences, the role and contribution of women in the African liberation struggle and to react to conflicts and economic development of the continent.

The central them of the decisions and resolutions of OAU on women’s matters throughout 1990s were on promotion, enhancement and empowerment of women’s participation at all levels of decision-making (international, regional, national and local). It was believed that it is only through the participation of women in every aspect of national and international affairs (Political, economic, social, etc) that a meaningful change can be brought. Of course, this position of the OAU was reflected in the recently adopted women’s Protocol. Moreover, the OAU Charter’s omission has been now remedied under the AU Constitutive Act by providing ‘promotion of gender equality’ as one of its guiding principles (CA, Art. 4(1)). In addition to this, the AU has adopted a ‘Solemn Declaration on Gender Equality in Africa’ on July 2004 which calls for the expansion of the gender parity principle to all AU organs, NEPAD, the RECs, and national parliaments.

African Protocol on the Rights of Women

The need to adopt women’s treaty law was called upon by NGOs working on women’s right which was based on concern about the pervasive abuse of women’s rights. The work was begun by appointing commissioners to coordinate and prepare women’s protocol. The role of African Commission on Human and Peoples Rights and the Gender Unit within the OAU was significant. The later prepared a draft OAU Convention on Harmful Traditional Practices (HTPs). However, the African Commission’s draft protocol and the HTPs draft conventions were later merged and adopted as the Draft Protocol to the African Charter on the Rights of Women in Africa (the Addis Ababa draft).

On “July” 2003, the AU Assembly adopted the protocol to the African Charter on the Rights of women in Africa which entered into force on 25 November 2005.

Women’s protocol, like that of African Children’s Charter, has introduced innovative norms and addressed the realities and problems of African women. Of course, it has also similarity with that of CEDAW provisions.

To assess the normative expansion brought about by the protocol, the pre-existing normative framework (‘the existing law’) has to be reviewed and contrasted with the protocol.

Though Article 18 of the ACHPR characterizes women as one of the groups deserving of protection, the special measures to be directed in protecting women and ensuring the elimination of discrimination against them are not delineated. Even if CEDAW was passed two years prior to the adoption of the African Charter, the fact is that the later was only minimally influenced by CEDAW’s provisions by incorporating only a single provision dealing with women’s rights.

Dear students, read article 18(3) of African Charter. Does it imply that all state parties to the African Charter have become bound to implement all the provisions of CEDAW?

The African Children’s Charter has also some link to women’s protocol as it provides for important rights of girl child, in particular the prohibition in children marrying under the age of 18.

Given the scope of protection under the above treaties, what then is the ‘added normative value’ of the protocol? Compared to CEDAW, the protocol speaks in a clear voice about issues of particular to African women and locates CEDAW in African reality.

The women’s protocol is the first treaty to place domestic violence, polygamy, HIV/AIDS, and medical abortion, in a binding human rights framework (Articles 4(2), 6(c), 14(1) (e), 14(2) k) respectively). It also provides in detail for the protection of women in armed conflict (Art. 11), and reiterates the need to accord women refugees protection under international law (Art. 4(2) (k)). The women’s protocol incorporates clear and expansive definitions of ‘discrimination against women’ (Art. 1(j), e.g. it includes economic harm), ‘harmful practices’ and ‘violence against women’. ‘Harmful practices’ such as female genital mutilation are specifically prohibited (Art.5).

The protocol provides specificity where vagueness prevailed, for example when it clarifies that ‘Positive African Values’ are those based on the principles of equality, peace, freedom, dignity, justice, solidarity and democracy (preamble). It also spells out the scope of socio-economic rights in greater detail than CEDAW, which limited some socio-economic rights to rural women (EDDAW, Art. 14), and goes beyond the scope of the rights provided for under the African Charter by spelling out the content of rights and by including the right to food security and adequate housing (Arts. 12,13,14,15 & 16).

A necessary implication of targeting violence against women and ‘unwanted or forced sex’ in the private sphere is that the protocol requires domestic violence legislation and the criminalization of ‘rape in marriage’. The precarious position of groups of women that have been rendered particularly vulnerable due to loss of a spouse, overlap with old age, disability, and poverty which also receive the protocol’s attention. (Arts. 20-24). The protocol once again reiterates the general stipulation of 18 years as the minimum age of marriage (Art. 6(b)).

Adopting a distinctly transformative stance, the protocol emphasizes ‘corrective’ and ‘specific positive’ (or ‘affirmative’) action. While CEDAW contains a generic provision allowing for ‘temporary special measures aimed at accelerating de facto equality between men and women’ (CEDAW, Art. 4(1)), the protocol reiterates the need for ‘positive’ measures by locating them in different contexts.

The protocol requires states to adopt measures that may favor women above men ‘such as electoral quotas for women in order to ensure substantive’ (‘in fact’) equality (Art. 9(11)). Positive action is also specifically required with regard to ‘discrimination in low’ (Art. 2(1) (d)), illiteracy, and education (Art. 12(2)).

Although the women’s protocol significantly advances standard-setting, it suffers from inelegant and unfortunate drafting deficiencies. The disproportionate effect of HIV and AIDS on women in Africa is not adequately reflected in the text. In any event, the right to be informed of one’s own and one’s partner’s HIV status is ambiguous and should not form the basis for the erosion of rights. The feminization of poverty, especially in rural Africa, is also not adequately reflected. As for its drafting, there is some inconsistency in the ‘rights-bearers’  in the protocol, with men sometimes specifically included in the scope of rights, and sometimes not. Similar to the instrument that it supplements, the African Charter, the women’s protocol does not have a provision on reservations. At the beginning of 2007, three states (Namibia, South Africa, and the Gambia) entered reservations upon ratification of the protocol. Thus, the benefits of these treaty provisions may be lost if reservations exclude the application of some of its important provisions. However, there are some hopes that even countries that entered reservations to CEDAW (e.g. Libya and Lesotho) did not enter similar reservations when ratifying the protocol. For lack of clarity, this area is expected to be elaborated by the enforcing organs on the basis of Vienna Convention on the Law of Treaties (1969).

With some 44 percent of its population under the age of 15, the adage that ‘children are the future’ rings more true in Africa than anywhere else. The protection of children’s rights is not only an investment in the future, but also an imperative of the present, which is characterized by children’s exploitation as solder’s, laborers, and sex-workers, and in human trafficking; the neglect of orphans, especially due to AIDS deaths; the prevalence of street children; early marriages and other harmful cultural practices; and the disproportionate impact of conflict on children (UNICEF, ‘State of the world’s Children 2006: Excluded and Invisible’) what these challenges show us- the level of vulnerability and special difficulties facing children. To fight these, the UN has adopted various resolutions (the 1959 Declaration on the Rights of the Child) and an important binding instrument-Convention on the Rights of the Child of 1989. These are the instruments globally addressing the rights of Children. So what is the need of having regional (OAU/AU) child rights instruments?

The OAU/AU Child Rights Protection System

Children’s rights first featured on the OAU’s agenda in 1979, the UN-declared International Year of the Child, when the Assembly adopted the Declaration on the Rights and Welfare of the African Child. Although not legally binding, this Declaration provided a moral compass for later legal reforms. Among other measures, the Declaration urged states to adopt, ‘legal and educational measures’ to abolish cultural practices that are harmful to children, such as early marriage and female circumcision. In 1987 nearly a decade after the adoption of the Declaration, the works and initiatives for creating binding child rights instruments in the African context were began. Conferences involving African NGOs, UNICEF and African lawyers were conducted in 1988.

A working group of African experts set up by OAU, prepared a draft Charter which formed the basis of eventual African Children’s Charter. This was ultimately adopted as African Charter on the Rights and welfare of Children on 11 July 1990 and entered into force on 29 November 1999, almost a decade later. F. Viljoen identifies two reasons for the adoption of this document: Political and legal reasons. On a political level, the OAU reacted against a perception of exclusion or marginalization of African States in the drafting process of the CRC. Their involvement was initially limited. From political point of view, there was a need to adopt a regional human rights instrument dealing with the issue of particular interest and importance to children in Africa. It was contended that in the CRC as a global instrument and the product of numerous compromises, regional specificities were victimized in the process of universal consensus-seeking.

Thus, some of the omissions’ from the CRC and those not sufficiently addressed, identified by those involved in the drafting process of ACRWC, are the following: the situation of children living under apartheid, factors disadvantaging the female child, practices prevalent in African society such as FGM and circumcision, socio-economic conditions such as illiteracy and low level of sanitary conditions, the African conception of the Community’s responsibilities and duties, child soldiers and minimum age for military services, and the role of family in the upbringing of the child and in matters of adoption and fostering.

All these concerns were at least partly addressed by the ACRWC. Compared to the CRC, the African Children’s Charter (ACC) raises the level of children’s protections in three important respects. First, while the CRC allows child soldiers to be recruited and to be used in direct hostilities (CRC- Art. 38(2) (3)), the ACC completely outlaws the use of child solders (Art. 22(2)). Secondly, in terms of CRC, child marriage is allowed, because Article 1 stipulates that child means every human being below the age of 18 years unless majority is acquired at an earlier age. The ACC is explicit in its prohibition of child marriages (Art. 21(2)); in fact, it adds that the legislation must be adopted to specify the age of marriage to be 18 years. Thirdly, in its protection of child refugees, the ACC extends its ambit to internally displace children (IDC) (Art. 23(4)), something CRC does not do (Art. 22). The causes for internal displacement are also all-inclusive.

Therefore, it can be concluded that the ACC has fulfilled the objective of supplementing the CRC with regional specificities.

Another feature of ACC is that it deviates from CRC by placing duties or responsibilities on children (Article 31). This aspect may be identified as one of the African feature of ACC like that of the main Charter (ACHPR). This approach was taken by some as giving legal effect to the subordinate role of children within the strict age-based hierarchy of traditional African societies. However, it is expected that these duties will be interpreted in light of the whole charter’s provisions and that of international human rights laws (Art 46). Such other counterbalancing provisions of the ACC are the right to free expression and protection of privacy as well as parental duty to ensure the best interest of the child. Moreover, the inclusion of duties into ACRWC also emphasizes the relational character of children’s rights which is, to some extent, enjoyed in reliance on adult support and guidance. Thus, it remains for the monitoring Committee to clarity further the scope of the children’s duty-provision.

One of the prominent features of the main African Charter, peoples rights such as self-determination (Art. 20), is not reflected in the ACRWC. This could be possible because it is not appropriate to specifically entitle children to most collective rights or if the need arises children can invoke/claim rights under the main Charter as part of the phrase ‘every individual’ & ‘Peoples’ (whatever its meaning).

The ACRW enumerates a number of civil, political, economic, social and cultural rights in a holistic way. While most rights are recognized and guaranteed as in the general human rights instruments and that of CRC, there are some provisions uniquely designed to African reality. These include provisions on enjoyment of parental care and protection (Art. 19), protection against harmful social and cultural practices (Art. 21), rights during times of armed conflict which provide greater protection than the UNCRC (Art. 22); and rights of refugees (Art. 23). There are specific provisions in the Charter for ‘handicapped children’ (Art. 13) and those of imprisoned mothers (Art. 30).

Recently on 2 July, 2006, African Union has adopted another instrument partly dealing with children. This is known as African Youth Charter (AYC). With 15 minimum requirements, but so far with 11 ratifications, AYC has not yet entered into force. The content of the Charter addresses many matters of African youth in the political, economic, social and cultural scenarios. Do you think having such separate human rights instruments is necessary?

The African Charter broke new grounds by enacting duties in a more elaborated and meaningful fashion than any other binding human rights instrument. The duty provisions of the African Charter aimed at the individual are found in articles 27 to 29. According to Article 27:

Every individual shall have towards his family and society, the state and other legally recognized communities and the international community.

The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Article 28 states that: “every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”

Article 29 provides that the individual shall have the duty:

to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need;

To serve his national community by placing his physical and intellectual abilities at its service;

Not to compromise the security of the state whose national or resident he is;

To preserve and strengthen social and national solidarity, particularly when the latter is threatened;

To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law;

To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;

To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-beings of society;

To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

The duty posture of the African Charter as enumerated above has been subjected to criticism. The critics are concerned with that it would be a basis for state parties to the African Charter to perpetrate human rights violations. This view is driven by the gross and persistent violations of human rights in post-colonial African states and the fear that vesting states with more power can only result in more abuses. To dismiss these criticisms in the face of present day African realities would not be proper. It will only amount to a denial of a potently genuine fear. On the other hand, however, the inclusion of duties in the Charter will not per se be an automatic avenue for states to engage indiscriminate human rights violation. The duties in the Charter, which the individual is charged to observe are not of the nature that could be tied to a particular right, which a state would in turn use as a retaliatory tool. The notion of duties in the Charter is rather another unique dimension of the African Charter in entrenching positive African cultural and traditional values which existed in pre-colonial Africa, and which complement the notion of rights. If viewed from this angle, critics of the language of duties in the Charter may be persuaded to do a deeper study of the implications of the duties.

The duty-rights conception of the African Charter could provide a new basis for individual identification with compatriots, the community, and the state. It could forge and instill a national consciousness and acts as a glue to reunite individuals and different nations within the modern state, and at the same time set the proper limits of conduct by state officials. The duties enshrined in the Charter could be read as intended to recreate the bonds of the pre-colonial era among individuals and between individuals and states.

Looking at the Charter provisions on duties, one would see that they are meaningful for the smooth working of society. Article 27(1) merely restates the fact that the individual owes a duty to his family, the state, other legally recognized communities and the international community. Article 27 (2) places a limitation on the exercise of rights by an individual for the protection of the rights of others, and in the interest of collective security, morality and the interest of others. This is a normal fact of life, which reflects the practical reality that no right is absolute. Individuals are asked to reflect on how the exercise of their rights in certain circumstances might adversely affect the rights of other individuals or the community at large. The duty is based on the presumption that the full development of individual rights is only possible where individuals care about how their actions would impact others. Article 27(2) thus raises the level of care owed to neighbors and the community. The same philosophy is embedded in Article 28. The duty of every person to respect and consider his or her fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance, is noting but a lubricant that oils the wheel of social interaction.

The duties set out in Article 29 stress responsibilities to the family, community and the state. There is nothing wrong for an individual to be reminded that he or she ought to respect his or her parents and to provide them with necessary care and maintenance. This is positive African cultural value, which has been codified for posterity. It is the joy of the African parent to toil and train his or her child, with a great expectation that when that child becomes “somebody” that child would take care of him or her. In the same vein, a person ought to serve his or her community with his or her intellectual and physical capabilities. That is the essence of community service, and it has been a long standing practice in the African past.

The same thing could be said of the duties not to compromise the security of the state, to strengthen social and national solidarity, especially when national solidarity is threatened, and the duty to preserve, strengthen and defend the national independence and territorial integrity of a person’s country. This group of duties reminds Africans of the need to preserve their hard-won independence. The duties represent an extension of the principle of self-determination in the external sense, as a shield against foreign domination. The maintenance of social and national solidarity for example, is of utmost importance in present day Africa where many modern states have collapsed or failed. The duty to pay tax is the civic responsibility of every citizen of any country, where the principle of taxation is recognized. The duties to promote positive African culture and African unity are emphases of societal cohesion.

We must also observe that the notation of duty is not just one that is directed against the individual. The Charter prescribes duties to states in addition to the general obligations that apply to them. The state is under a duty to assist the family (Article 18 (2). Article 25 imposes a duty on states to promote and ensure through teaching, education, publication, the respect of the rights and freedoms contained in the Charter and to see that these freedoms and rights as well as corresponding obligation and duties are understood. Similarly, Article 26 creates a duty for states to guarantee the independence of the courts. The difference between the duties of individuals under the Charter and those of states is that, while those of the individuals cannot ordinarily be used to proceed against them under the regional mechanism, those of states amount also to obligation within the charter, over which they can be challenged.

The notion of duties under the African Charter, while not totally without concern as to possible misuse by the political class, whether in military uniform or civilian garb, needs to be evaluated in a different light. It is noting but an embodiment of the positive dimension of African cultural philosophy, which the Charter tries to codify for the benefit of posterity. Any thinking to the contrary by the ruling class must be resisted.

Claw-Back Clauses under the African Charter

The phrase “claw-back clauses” has been used to generally refer to those provisions of the African Charter that tend to limit some of the rights guaranteed under the Charter. They do not qualify as outright derogation clauses that are found in other international human rights instruments. They rather qualify the enjoyment of the right as contingent upon other notions of state prescription. For example, Article 8 grants the freedom of conscience, profession and free practice of religion, “subject to law and order”. Under Article 10, an individual has the right to free association “provided that he abides by the law”. Similarly freedom of movement of an individual is guaranteed by Article 12 “provided he abides by the law”.  Citizens have the right to participate freely in their governments “in accordance with the provision of the law.” Article 14 provides for the right to property, but that property may be encroached upon “in accordance with the provision of appropriate law”.

These clauses have been criticized, based on the fact that states are traditionally the most frequent violators of human rights. They also have the power to create and change laws. By inserting clauses that permit rights to be limited by the law, the Charter makes human rights especially vulnerable to the very institution which attacks them most often. The criticism goes further to assert that claw-back clauses in the Charter go further than derogation clauses in that they permit a state, in its almost unbounded discretion, to restrict its treaty obligation or the rights guaranteed by the Charter. Though derogation clauses, on the other hand, permit suspension of treaty obligations, such suspension is temporary, while that based on claw-back clauses may be permanent. In the same vein, derogations can only be invoked in cases of emergency, unlike claw-back clauses which may be applied in normal circumstances, so long as a national law is passed to that effect. Gittleman opines that while derogation clauses warrant the suspension of only certain obligation and rights, rather than all rights, claw-back clauses have no limit.

One will agree with the observation that the effect of claw-back clauses as expressed in the African Charter is that it seriously emasculates the effectiveness of the Charter as well as its uniform application by Member States. This is because instead of the Charter having primacy, the various national laws of Member States actually assume a primary place. The effectiveness of the Charter will thus be reduced, since it would appear to be subject to national standards as laid down by domestic law. Such domestic laws could be laws that are made to validate acts of violation deliberately embarked upon by Member States. Various Africa governments are known for the use of retroactive legislation to achieve their dictatorial tendencies, and will thus find the claw-back clauses a veritable source of inspiration. One must agree that claw-back clauses in the Charter, if not properly construed, will frustrate the enjoyment of some of the rights guaranteed in the Charter. This is because, permitting national law to limit, with a superseding effect, provision of the Charter, means that the Charter itself permits the perpetration of violations of rights enshrined in it. In other words, the Charter gives rights, but permits them to be taken away, thus not protecting the individuals it is meant to protect.

The Commission needs to make a categorical statement, either by way of a resolution or a finding in the course of its adjudicatory function, on the purport of the claw-back clauses scattered all over various articles of the Charter. The common phrases “subject to law”, “in accordance with the law”, etc used in claw-back clauses, need interpretation.