KIWANUKA, RN (1988) 82 American Journal of international Law 80

… Human rights vs Peoples’

The full title of the Banjul Charter raises the controversial question of the difference and relationship between (individual) human rights and (collective) peoples’ rights. The relationship between the two must clearly be appreciated to avoid compromising either. In this connection, Roland Rich’s three-premise approach could be a particularly helpful starting point:

1) The individual remains the primary subject of international human rights law.

2) International human rights law recognizes the existence of groups.

3) The enjoyment of individual human rights requires certain human right to devolve directly upon groups.

The first is now generally accepted and does not require detailed examination. The individual is the cardinal subject of international human rights law. The second premise is rapidly becoming a well-settled principle, as international human rights law has already extended recognition to groups of persons as such. These include minorities, colonized peoples and indigenous populations. It is the third that requires a closer look, for it is the raison d’etre of collective rights.

Karel Vasak referred to collective rights, similar to those covered in the Banjul Charter, as belonging to the third generation of human rights and termed them ‘solidarity rights’. According to him, rights under this umbrella:

Seek to infuse the human dimension into areas where it has all too often been missing, having been left to the state or states … [T]hey are new in that they may both be invoked against the state and demanded of it; but above all … they can be realized only through the concerted efforts of all the actors on the social scene: the individual, the state, public and private bodies and the international community.

Here we can detect elements of peoples’ sovereignty, not only in the political, but in the economic sphere as well. In addition, and perhaps more importantly, Vasak emphasized the need for concerted action in the effort to deliver certain rights-hence the solidarity tag.

The basic question, however, remains: Are collective rights human rights or not? Part of the problem lies in the terminology itself. This evident, for example, in the following comment:

Can human rights, as opposed to obligations, be vested in states? ... [T]here is no precedent in international law for the vesting of human rights in states. Human rights are vested in the individual. Certain collective rights derive from those individual rights, especially from the right to freedom of association. But does that mean that these rights extend to states or Governments?

On the surface, it appears logical to state that a human right can only be enjoyed by a human being. Louis Sohn perhaps would respond to this observation by reminding us that because collective rights are always ultimately destined for individual, they are ipso facto human rights:

One of the main characteristics of humanity is that human beings are social creatures. Consequently, most individual belong to various units, groups, and communities; they are simultaneously members of such units as a family, religious community, social club, trade union, professional association, racial group, people, nation, and state. It is not surprising, therefore, that international law not  only recognizes inalienable rights of individuals, but also recognizes certain collective rights that are exercised jointly by individuals grouped into larger communities, including peoples and nations. These rights are still human rights; the effective exercise of collective rights is a precondition to the exercise of other rights, political or economic or both. If a community is not free, most of its members are also deprived of many important rights.

The drafters of the 1966 international human Rights covenants adopted a similar position. That was why they included the collective right to self-determination in the covenants and gave it pride of place. This strong endorsement, however, did not convince detractors of collective rights. Therefore, I suggest that collective rights be regarded as sui generis. They are not individual, but collective; they belong to groups, communities or peoples. When the group secures the rights in question, then the benefits redound to its individual constituents and are distributed as individual human rights. This concept can be illustrated by taking professor Sohn’s example of the club further: in an interclub tennis tournament, only clubs have the right to participate even though individuals actually play the game. Members as skilled as Navratilova or Lendl would not have an automatic right to play in tournaments. Contestants are entered by their clubs in accordance with the internal arrangements of those clubs.  The individual’s right to play can only be expressed in and through the club. This right is actualized, first, by protecting the club’s rights in the wider setting; and then by the individual rights in the club. International and individual rights are no different.

Consequently, the Banjul Charter, by separating peoples’ from human rights, does not obfuscate but progressively develops international human rights Law. It shows, in clear terms, that there is a conceptual difference between collective (peoples’) rights and individual (human) rights.

Furthermore, the Charter approaches the two categories in a balanced manner; it does not give the impression of favoring one category over the other. The fact that individual rights are not as well secured as one would have wished, is due not to a preference for collective rights but to the political realities of the continents and the OAU. Governments were not yet ready in 1981 to have their affairs completely opened to international scrutiny. Moreover, a close examination of the Charter reveals that, in most of the cases, peoples’ rights (as opposed to state rights) do not fare much better than individual rights. However, in its own way, the Banjul character at least theoretically recognizes that all classes of rights (political, economic, individual and collective) are equal and synergetic.

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The meaning of ‘people’

The definition of ‘peoples’ has primarily been approached in the context of the right to self-determination, where it has been used to indicate an ethnic community or a community that identifies itself as such because of common interests. Yoram Dinstein, writing with Middle Easter problems in mind, identified subjective and objective quantities of term:

The objective element is that there has to exist an ethnic group linked by common history …

… It is not enough to have an ethnic link in the sense of past genealogy and history. It is essential to have a present ethos or state of mind. A people is both entitled and required to identify it self as such.

Ian Brownlie expanded on that definition but laid more emphasis on identity:

No doubt there has been continuing doubt over the definition of what is a ‘people’ for the purpose of applying the principle of self-determination. Nonetheless, the principle appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which it lives. The concept of distinct character depends on a number of criteria which may appear in combination. Race (or nationality) is one of more important of the relevant criteria, but the concept of race can only be expressed scientifically in terms of more specific features, in which matters of culture, Language, religious and group Psychology predominate.

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In a report written for the United Nations, Aureliu Cristescu offered a limited definition of the term ‘people’ for the purposes of the right to self-determination. He preceded it by explaining that the United Nations had proceeded cautiously, albeit firmly, in the struggle against colonialism and it would not be possible to produce a definition covering all possible situations. From the specific situations already witnessed, he believed the following elements had emerged:

a) The term ‘people’ denotes a social entity possessing a clear identity and its own characteristics;

b) It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population;

c) A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the International Covenant on Civil and Political Rights.

Among these three writers, the main attributes of peoplehood are presented, namely commonality of interests, group identity, distinctiveness and a territorial link. It is clear, there fore, that ‘people’ could refer to a group of persons within a specific geographical entity.

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Both these references are common, but that does not make their use unambiguous. Christescu’s exclusion of minorities depended on certain assumptions that, as we shall soon see, are no longer tenable.

‘people’ as possessors of the right to political self-determination

Under article 20 of the Banjul Charter, the right to self-determination is guaranteed to all peoples. However, paragraph 2 of article 20 singles out colonized and oppressed peoples as the possessors of that right. This is the least problematic of the uses of ‘people’. Under current international Law, as evidenced, for example, by the practice of the United Nations, the Organization of African Unity and individual states, political self-determination is generally equated with freedom from colonial-type rule. It does not extend to insistence by one sector of the population of an independent (or majority – ruled) state on its own form of self- determination, culminating, perhaps, in secession.

Following this line of reasoning, Eisuke Suzuki suggested that, in reality, there are only three remaining opportunities for the exercise of this right in Africa: The dismantling of minority rule in South Africa, the achievement of independence for Namibia and the resolution of the problem of the Western Sahara. International Law has chosen to deny such groups as the Eritreans the right (privilege?) of designating their struggle as one for the attainment of the right to self-determination.

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International Law already treats the right to self –determination as tied to a specific geographically defined territory. Further subdivision would not be consistent with that position. Moreover, a people wishing to go its separate way would have to renounce the authority of the liberation movement representing it.

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From the foregoing, we can conclude that the first meaning of ‘people’ is all the different communities (peoples), in fact, all persons within the boundaries of a country or geographical entity that has yet to achieve independence or majority rule. Once independence (or majority rule) is achieved, no further independence is permissible. The rights of the different peoples would thereafter be protected as minority rights.

Before leaving this point, I should observe that the rule against secession as an exercise of the right to self-determination is only a general one. Although it is backed by a solid body of UN, AU and state practice, it can still admit a few exceptions. The independence of Bangladesh was one. Ved Nanda, in a definitive article on the subject, demonstrated the existence of a set of circumstances that combined to lend a clock of legitimacy to what would otherwise have been impermissible in international Law. These were the physical separation of East from West Pakistan and the total domination of the former by the latter; the nature of their ethnic and cultural differences; the disparity in their economic growth to the disadvantage of East Pakistan; the electoral mandate to secede; the brutal suppression of dissent in East Pakistan and the viability of both regions as separate entities. The fact that the United Nations was presented with a fait accompli was also significant.

Although many of the secession claims in various parts of Africa have been characterized some of the elements of the Bengali struggle, few have come close to matching it. For example: The secessionist activities in Katanga and Biafra were roundly condemned by the United Nations and the OAU as threats to sovereignty and territorial integrity. The conflict in Eritrea has practically been shoved into a closet despite Eritrea’s illegal absorption into the Ethiopia Empire in 1962. Finally, the unilateral declaration of independence by the Saharan Arab Democratic Republic (SADR), as well as its subsequent admission into the OAU in 1982, was not an exercise in secession. Moroccan and Mauritanian claims to the territory of Western Sahara had been rejected by the International Court of Justice.

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Peoples as the different minorities

One of these problems was to work out an acceptable definition of who constituted a minority. Several definitions were essayed with varying degrees of success. The most satisfactory and acceptable was the one proffered by Francesco Capotorti in a report commissioned by the UN Sub-Commission on prevention of discrimination and protection of Minorities. He suggested that:

A minority is a group numerically inferior to the reset of the population of a state, in a non-dominant position whose members – being nationals of the state-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or Language.

The pertinent question, for present purpose, is whether or not a minority, thus defined, can be referred to as a ‘people’ entitled to enjoy the peoples rights contained in the Banjul Charter. If we do not confine ourselves within the straitjacket of assuming that peoplehood and the right to self-determination automatically lead to independent statehood, it is not difficult to appreciate that, indeed, a minority can fulfill all the requirements of a ‘peoples’. As Felix Ermacora correctly argued:

Unless the United Nations has not developed clear-cut ideas about the holder of the right to self-determination my opinion is that minorities also can be considered as people. They must live also in a territory or they must have been living in a territory which is now occupied; they must have cultural or religious characteristics; they must be politically organized that so that they can be represented; and they must be capable of an economic independence. It does not depend on governments as to how they are describing an entity as a people; it depends on objective and subjective criteria of a group. It depends also on the self-consciousness of identify. I think therefore, that national and racial, perhaps also religious, minorities could be considered peoples in the sense of an autonomous concept of the United Nations instruments. For them self-determination is inalienable.

It must be emphasized that total independence is not the exclusive form in which the right to self-determination is realizable. What is important is that the right of the group and its members receive recognition and protection.

Since secession is generally impermissible in current international law, all references to political self-determination, in relation to independent states, should mean respect for minority rights. By the injunction of article 19 that ‘[n]othing shall justify the domination of a people by another’, the Banjul Charter proscribes external and internal forms of colonialism. Minorities are entitled not to lose their identity and interests in the aggression-of the whole

The right to existence in Article 20 addresses the problem of genocide perhaps the single worst threat to minorities. In other cases involving self-determination, a people within a state should be sufficiently protected by respect for both its minority rights (for example language, culture, religion) and the human rights of its members. That this protection may break down and that minorities everywhere, especially in the Third World, are constantly in fear of repression are actualities that cannot be assured an unequivocal collective solution by international Law. Such violations are regarded as violations of individual and minority rights and treated accordingly. The International Covenant on Civil and Political Rights of 1966 adopted a similar approach. In addition to individual rights and liberties, it made room for the protection of minority rights in article 27.

Where minority and individual rights arte respected, there will not be many motives for secession. The concept of ‘people’, in this sense, is designed to achieve that objective.

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In sum, the apparently progressive introduction of the concept of ‘peoples’ into the Benjul Charter could actually turn out to be counterproductive in some respects, that is, where the rights and interests of the people are not respected by the state. In such situations, peoples’ rights might initially be treated as state rights and then degenerate into sectarian, class, government, regime and clique rights. In the extreme, they could become certain individuals’ rights. This ultimate perversion has already come to pass in many Africa countries, such as Zaire, where the incumbents have unfettered control over the disposal of natural resources and state wealth. In situations of despotic misrule, one of the first casualties is usually the economy, as the governors embark on orgies of personal enrichment. The outrageous exploits of such dictators as Amin, Bokassa and Nguema are Legendary. Indeed, politics in Africa and the developing world generally, sometimes seems like a business venture.

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There is no necessary contradiction between the third meanings noted above, which equates ‘people’ with the state, as long as the state acts for the benefit of all the people, and professor Cassese’s view, which underlines the need for democracy in the economic realm. This third meaning refers to the external application of the right to economic self-determination. The state would control the commanding heights of the economy so as to minimize leakage and benefit the people, that is, all the peoples. Under present circumstances, however, to achieve this goal, it is imperative that the state sall be controlled by the people in the democratic sense. This is the message of the Algiers Declaration. It deals seriously with the relationship between peoples and their state in a way the Banjul Charter does not. This omission needs urgent correction otherwise the whole basis of peoples’ rights in the economic sense will hang in doubt.

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The Banjul Charter provides for a set of individual rights and liberties, which should complement and reinforce the right of peoples. However, the timorous approach to the protection of individual rights (or, indeed, any rights claimable against a state party) does not offer much hope for this meaning of peoples to be significantly asserted.

Provide the Commission is allowed to function effectively; it could redeem some of the grounds apparently conceded to states and governments. It will be in the interest of all African countries and their peoples for popular democracy to be given a chance. The lofty ideals of the peopls’ rights in the Banjul Charter-such as peace and development depend, in a large measure, on respect for individual. Peoples’ rights can not be a substitute for individual human rights.

One unique aspect of the African Charter is its inclusion of group, collective or peoples’ rights as distinct rights in addition to civil and political rights and economic, social and cultural rights. The notion of peoples’ rights seems controversial, and raises a number of questions in the minds of international human rights scholars. Such questions include: what point is Africa trying to make? What is the definition of “people”? Does it mean that the rights of the individual have become subordinated to peoples’ rights?

In trying to answer the questions above in the context of African human rights concept, some African scholars have canvassed African traditional way of living in which communal relationship is emphasized. According to one view, “living in Africa means abandoning the right to be an individual, particular, competitive, selfish, aggressive, conquering being . . . in order to be with others, in peace and harmony with the living and dead, with the natural environmental and the spirits that people it or give life to it.” The predominant sentiment apparent in the above statement is that in Africa, the individual is totally taken over by the archetype of the totem, the common ancestor or the protective genius, and merges into the group. There is no doubt that the diverse cultures of Africa significantly identify group influence over the individual. The statement of the African Charter, however, goes further than this group identity. By providing for group rights, the Charter does not subordinate individual rights to group rights, neither does it remove the individual from being the subject of the human rights concept. What the Charter tries to do is to establish a link between the inalienable rights of the human person and of peoples in a contextual manner.

The contextual approach to human rights raises the issue of safeguarding, promoting and preserving universal rights and human values in societies with different political, social and cultural backgrounds. It touches upon the question of recognizing the very identity of diverse cultures, civilizations and peoples with due respect for fundamental and universal values of humanity. Similarly, the following preambular paragraph of the African Charter reinforces the relationship between peoples’ rights and human rights: “Recognizing, on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection, and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights.” Second, peoples’ or groups rights are not in conflict or in competition with human rights, as they are complementary concepts.

Some aspects of the notion of collective rights enshrined in the African Charter are strongly amplified by the U.N. Declaration on the Right to Development. Such endorsement of the principle of collective rights is indicative of their importance rather than their destructive tendencies. While it may be true that recent experiences and actual practices in different parts of the world have revealed what happens when a misconceived concept is misinterpreted and vehemently enforced, the concept of collective rights cannot be said to be fraught with such dangers as apartheid, or such others concepts that degrade the status of the human person. Van Boven rightly points out that the principle of the right to development, for example, is a notion of peoples’ right that is not destructive of individual human rights, but one that places peoples’ rights and human rights in mutual relationship as complementary concepts.

One does not contend the fact that there is no generally accepted definition of people, neither does the African Charter offer one. However, there is consensus among jurists that some working characteristics of “peoples” have emerged from studies made under the auspices of UNESCO. Such characteristics, among others, include:

1. An enjoyment by a group of individuals of some or all the following common features:

(i) Common historical tradition;

(ii) Ethnic group identity;

(iii) Cultural homogeneity;

(iv) Linguistic unity;

(v)  Religious or ideological affinity;

(vi) Territorial connection;

(viii) Common economic life.

2. The group on a whole must have the will to be identified as a people or the consciousness of being a people.

By choosing to create legal obligations out of peoples’ rights, the point that Africa is trying to make is that, just like other leading instruments, such as the American Declaration of Independence, the French Declaration of the Rights of Man and of the Citizen, the Universal Declaration of Human Rights, the African Charter is more than a legal instrument. It is also an instrument of liberation; and embodies human aspirations and goals, reflecting constitutive elements of justice. According to van Boven, this is more so, because the struggles for human rights and peoples rights are not only settled in the courts, but also and perhaps more decisively in political fora. Thus, instruments on human rights and peoples rights may function in an extra-legal dimension as a guarantee and as mechanisms to defend freedom. Particularly in the third world, they also serve as tools of the liberation for the deprived, the oppressed, the have-nots and victims of discrimination.

Peoples’ rights under the Charter span from Article 19 to 24. Article 19 guarantees the equality of all peoples and prohibits the domination of a people by another. Article 20 provides for the right of all peoples to self-determination. Article 21 guarantees the right of all peoples to freely dispose of their wealth and natural resources and to exercise several related rights. Article 22 deals with the right to development, while Article 23 deals with national and international peace and security. Finally article 24 guarantees the rights of all peoples to a satisfactory environment favorable to their development.  Though the scope of each rights and the beneficiaries under each categories of the rights are broad and some times debatable, we will briefly discuss the basic feature of some of them.

• The Right of Self-determination

The right of self determination is conceptually provided for in Article 19 of the Charter, while specifically enumerated in Article 20. Article 19 provides that “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.”

Article 20 reads as follows:

All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social; development according to the policy they have freely chosen.

Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination of resorting to any means recognized by the international community.

All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

The above Charter provision on the right of self-determination underscores the colonial experience and domination of Africa with a view of eliminating all vestiges of colonialism. The fact, however, that the Charter is a document enacted in post-independent Africa leaves one to wonder on the perceived application of the concept in the future. While Article 20 (2) and (3) reinforce opposition to all forms of colonialism, Articles 19 and 20 (1) are general guarantees against domination of any kind of peoples. Article 20 (2) not only emancipates colonized people, but also “oppressed peoples.” As has been rightly observed, the above provisions have left commentators wondering whether the principle of self-determination of “peoples” would apply to groups within sovereign African States who may wish to secede as was the experience in Biafra, Western Sahara, Katanga and Eritrea.

The African struggle for decolonization was essentially a struggle for the right of self- determination of African people to freely determine their political status and freely pursue their economic, social and cultural development. With the attainment of de jure independence of African States the quest for self-determination became reinforced as experiences in the above cited examples have shown. African States have individually, and under the auspices of the OAU, taken the position that self-determination does not apply outside the colonial context, because such post-colonial application of the concept will undermine African unity. The International Court of Justice (ICJ) in a case between Burkina Faso and Mali has endorsed this theory of African unity as a basis for not applying the principle of self-determination to groups within post-colonial Africa. The ICJ stated that

“the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by the peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice.”

There is no disputing the fact that African unity is indispensable to African development and would be the preferred option of all well meaning Africans. However, events all over African have shown that the domination experienced during colonialism, on basis of which Africa fought for independence, still pervades the continent. Eritrea, Rwanda, Western Sahara, Katanga, Anglophone Cameroon and post-Biafra domination in Nigeria are glaring examples. Some of these cases have shown that there are certain exigent circumstances where the principle of self-determination should be allowed to apply rather than a preference for the human carnage that went on (and still goes on) in most of these examples.

The African Commission is yet to find its bearing on the challenges posed by several of these collective rights. The Commission’s position on the right of self-determination is not different from the views expressed by African States on the issue. The first test case on self-determination that came before the Commission was Katangese peoples’ Congress v. Zaire. In that case, the people of Katanga submitted a communication under the auspices of Katangese Peoples’ Congress in 1992 requesting the African Commission to recognize the Katangese Peoples’ Congress as a liberation movement entitled to support in the achievement of independence for Katanga; recognize the independence of Katanga; and help secure the expulsion of Zaire from Katanga. The complaint alleged that the history of the Katangese people showed that its territory is separate from Zaire. The communication, therefore, called on the Commission to find that the people of Katanga were entitled to an independent and separate State.

In its deliberations on the communication, the African Commission identified Article 20 (1) of the African Charter as the applicable provision, as there were no allegations of specific breaches of other human rights. The Commission agreed that all peoples have a right to self-determination, but that there may be a controversy as to the definition of the peoples and the content of the right. The Commission identified that the issue in the case was not self-determination for all Zaireans as a people but specifically for the Katangese, but that whether the Katangese consisted of one or more ethnic groups was, for that purpose immaterial, and that no evidence to that effect had been adduced.

The Commission agreed that self-determination may be exercised in a number of ways, such as independence, self-government, federalism, confederalism, unitarism or any other from of relations that accords with the wishes of the people, but that it must be fully cognizant of other recognized principles, such as sovereignty and territorial integrity. The Commission vehemently maintained that it was obliged to uphold the sovereignty and territorial integrity of Zaire as a member of the OAU and a party to the African Charter. It ruled that in the absence of a concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question, and in the absence of evidence that the people of Katanga were denied the right to participate in government as guaranteed by Article 13 (1) of the African Charter, Katanga was obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire. For the above reasons, the Commission declared that the case held no evidence of violations of any rights under the African Charter; and that the request for independence, therefore, had no merit under the African Charter on Human and Peoples Rights.

It is clearly evident from this case that the African Commission does not intend to interpret the right of self-determination as long as there is the right to participate in the government of one’s country under Article 13 (1) of the Charter. Any other claim would appear to a majority of members of the Commission to be a threat to the territorial and sovereign integrity of an African State.

In view of the above decision, scholars may continue to wonder without end, the actual purport of Article 20 of the Charter. Interpreting the Article to apply only to foreign domination is contradictory of the clear language of the Article. The second and third paragraphs of the Article specifically identify colonized peoples, and to that extent could be said to apply to foreign domination. Paragraph 2 on the other hand, does not only identify colonized people, but also oppressed people. Oppressed people could well be within sovereign African states. In addition, paragraph 1 applies to all peoples, without specific reference to colonized people or foreign domination. In this regard, there is growing consensus that the right of self- determination is not limited to freedom from colonial domination, but extends also to contemporary post-colonial realities.

Be the above as it may, one would agree that there is a need for cautious application of the absolute principle of self-determination in view of the territorial and sovereignty issues at stake. Rather than dismiss every claim of the right to self-determination, the implementing machinery of the African system should adopt strict standards on the right, which would ensure that frivolous claims are not allowed to demean its procedure. The African Human Rights Commission ought to be open-minded enough to consider genuine complaints by genuinely oppressed groups within sovereign African states.

• Right over Wealth and Natural Resources (Art.21)

Article 21 provides:

All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as an adequate compensation.

The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.

States Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation, particularly that practiced by international monopolies, so as to enable their peoples to fully benefit from the advantages derived from national resources.

The right over wealth and natural resources is a component right of self-determination, and has been so regarded since the adoption of the UN Resolution on Permanent Sovereignty Over Natural Resources. One could say that the drafters of the African Charter were inspired by the above resolution. In the 1952 resolution, the General Assembly recognized “that the under-developed countries have the right to determine freely the use of their natural resources . . . in order to be in a better position to further the realization of their plans of economic development in accordance with their national interests . . . .” This principle was one of the early marks of decolonization. During this period, developing countries asserted sovereignty over their natural resources during their struggle for political self-determination and economic development. They argued that sovereignty over natural resources was an essential prerequisite for economic independence and development, and therefore a cardinal component of State sovereignty. Today, the principle has become established as “a fundamental principle of contemporary international law.

A close reading of Article 21 of the Charter reveals that “peoples” and States are guaranteed this right to their wealth and natural resources. While it is the right of all peoples freely to use, exploit, and dispose of their natural wealth and resources, states have the right to exercise control over their natural wealth and resources, and in such a way that will eliminate the excesses of multinational corporations. This interpretation brings back the argument already made in the previous discussion on the right of self determination as to whether “peoples” here could be extended to groups within sovereign African States. It has been observed that the doctrine of permanent sovereignty arose in the context of relations between host States and transnational enterprises engaged in the exploitation of natural resources. As a result, the right of the State to legislate for the public good with respect to the natural resources and economic activities in its territory has become the most common construction given to the doctrine of permanent sovereignty.

The African Commission is yet to decide a case that borders directly on article 21 of the Charter. Some of the cases dealing with violation of personal freedom may have arisen from circumstances that could be construed as having their root in that provision. It is hoped that, when the commission or other adjudicative body gets the opportunity, it will take into consideration the reality of the times. The process of economic reforms that will follow in African countries in the millennium will definitely lead to legal reforms that ought to take into consideration the notion of the rights of people (groups within sovereign states) to enjoy the wealth and natural resources on their land, subject to reasonable state control. To be considered also, is the role of multinational corporations in state violation of human rights based on the exploitation of natural resources and similar activities.

• The Right to Economic, Social and Cultural Development (Art.22)

Article 22 of the African charter provides that:

1.all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind; and 2. State shall have duty, individually and collectively, to ensure the exercise of the right to development.

The right to development has acquired the status of an internationally recognized right since the early eighties. The right has grown as a branch of international law. Keba M’Baye, the first president of the Supreme Court of Senegal and a judge of the International Court of Justice, is credited with first formulating the right to development as a human right in the early seventies during the 1972 Strasbourg Inaugural Lecture in which he elaborated upon the economic, legal, moral and political justifications for the existence of the right to development. The emerging recognition of the right was confirmed by the United Nations General Assembly Declaration on the Right to Development in 1986. This Declaration followed the adoption of the right to development by the general assembly as a human right in 1979.

As is normal in international law, the right to development has been a controversial subject, provoking lengthy debates as to its existence. For proponents of the right like M’Baye, there can be no human rights without development and vice versa. It is further argued that there is higher propensity to violate human rights in underdeveloped countries than in developed ones, thus drawing a correlation between positive protection of human rights to a higher level of economic development. In the other side of the coin, the argument is that the right to development is a mere expression of sentiments devoid of any legal validity.

The right to development has already come to stay as a human right, and therefore has to be developed, albeit progressively, to serve the general purpose of development. Generally, the right to development consists of the right of individuals to benefit from a development policy based on material and non material needs and to participate in the development policy. It also involves the collective right of a developing country to the establishment of a new international order. The general interpretation to be given to this dimensional approach is that in the end, the human being is viewed as the subject and not the object of the development process. On a practical level, there is a natural translation of the right to development into the right of communities, especially those of indigenous peoples, to develop their culture and maintain possession of their land and cultural resources in the face of economic development policies that threaten their extinction.

There is no doubt that the concept is quite controversial and its precise definition extremely complex. However, it is clear that the notion of solidarity, or international cooperation and shared responsibility for the welfare and prosperity of all, is the central basis for the realization of this new right. To this end, the Charter implies a progressive obligation of member states to ensure that while individual freedom is emphasized, economic, social and cultural development will be promoted.

The African commission has not had a chance to decide any petition on the right to development.

• The Right to Peace (Art.23)

On the right to peace, article 23 of the Charter states:

1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of Africa Unity shall govern relations between states.

2. For the purpose of strengthening peace, solidarity and friendly relations, states parties to the present Charter shall ensure that:

(a) Any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against the country of origin or any other state party to the present Charter.

(b) Their territories shall not be used as bases for subversive or terrorist activities against the people of any other state party to the present charter.

Article 23 (1) restates the principle of the preservation of international peace and security, as well as the principle of friendly relations among states, which the UN Charter provides for as some of its main objectives, and which also forms a basic foundation of the OAU.  Apart from the restatement of the principle of international peace and security, the paragraph also makes it the rights of all peoples. Similarly Article 23 (2) prescribes two specific ways by which states parties would ensure peace and strengthen solidarity and friendly relations.

The question of peace as a human right, into which some obligations can also be read, is entirely novel, and began with the African Charter. Generally, the law of peace is part of the classical subdivision of the subject matter of international law. Thus, the principle of peaceful coexistence, peaceful change, and prohibition of coexistence, peaceful change, and prohibition of coercion – all find expression in a variety of national and international legal instruments. Apart from the provisions of Article 1 of the UN Charter, the right to peace has been the subject of debates and study by the UN Commission on Human Rights. These debaters culminated in UN General Assembly Resolution, which reaffirmed the right of individuals, states and all mankind to a life in peace.

According to Alston, despite the significant of the above instrument on the right to peace, the elements of the right have never been determined, and that, no effort has yet been undertaken to elevate the term beyond the level of generalities, or to allow it to develop into practical usefulness. While this observation may be correct, in terms of the practical realization of the right to peace, we must recognize the efforts at the UN level to define and develop the content and elements of the right. For practical purposes, however, it is difficult to see how Article 23 (1) of the African Charter can be properly articulated in terms of enforcing the right of all peoples to national and international peace and security. It is true that in Africa, peace and security have become increasingly of grave concern. The Charter does not contain enough contents to aid the enforcement of the right. The two situations in which states are obliged to ensure the achievement of peace, solidarity and friendly relations are not adequate. They limit the whole question of peace to ensuring that an asylee does not engage in subversive activities against his or her own country, or any other state party to the Charter; and provide a prohibition of the use of the territory of a Member State for subversive or terrorists activities. While these are inherent in the whole agenda of peace, they serve the notion of state sovereignty and non-intervention in the internal affairs of a member state of the OAU, which has been a long standing principle of the regional body, but which has stood in the way of human rights enforcement.

The African commission has not yet had a chance to consider a communication based on Article 23 of the Charter. The Commission has, however, adopted a number of resolutions on situation in Africa that threatened peace and security in various Member States and the continent at large. By the nature of Article 23, it would appear that states are in a better position to enforce a violation of the right than individuals, through the inter-state communications procedure.

The principle that the right to peace, and the right to live in peace, entail more than the obligation of states not to engage in aggressive war, is already firmly established international law. There are other possible extensions of the right to peace which involve related rights, duties and obligations, many of which are already implied in existing rights and guarantees. For example, the right of all peoples to participate in the decisions of their government regarding war and peace is implicit in recognized rights of political participation. Furthermore, the right of conscientious objection is already contained in the guarantee of freedom of thought and conscience.

The Right to Environment (Art.24)

Article 24 of the Charter provides that

all peoples shall have the right to a general satisfactory environment favorable to their development.

The first international large scale formulation of concern for the environment in a right- related posture was at Stockholm in 1972. Since then several efforts have been made to achieve international recognition for a clean and healthy environment. After more than two decades, the Stockholm conference was followed by the Rio Declaration. At the time of the Stockholm Declaration, environmental action was understood to be principally a matter of preventing pollution; and in developing countries was seen as a luxury to be afforded only after industrialization. As environmental issues became increasingly stressed, several national constitutions began to incorporate the right to the environment.

The concept of a healthy environmental is therefore, not new. However, the link between a healthy environment and human rights is a recent development. It has been observed that the suggestion to link human rights and the environment was made by Rene Cassin, who opined that human rights protection should be extended to include “the right to a healthful and decent environment, that is, freedom from pollution, and the corresponding right to pure air and water.” It was, however, the African Charter that gave the right to a healthy environment its international codification in a human rights instrument.

What exactly does the right to a general satisfactory environment as formulated in Article 24 of the African Charter mean? Ankuma has criticized the provision as vague, and thus subject to divergent interpretations. She, however, notes that the broad formulation of states’ obligations leaves room for flexibility, in such a way that it may be possible for states to adhere to their human rights obligations in accordance with their particular situation. There is no doubt that the manner in which the right to environment is formulated in the African Charter does not guarantee a definite interpretation in terms of the contents of the right. This may, however, be a blessing in disguise, if any interpretation to be given to the right takes cognizance of the realities of the situation in accordance with prevailing international law principles. In addition, the right to environment by nature cuts across civil and political rights and economic, social and cultural rights. It is said to have the characteristics of civil and political rights in so far as it requires states to refrain from activities that are harmful to environment, while on the other hand, it has a feature of economic, social and cultural rights in that it requires states to adopt measures to promote conservation and improvement of the environment. In all, the right to environment has different dimensions. The individual dimension is the right of any victim or potential victim of an environmentally damaging activity to obtain reparation for harm suffered, while the collective dimension involves the duty of the state to assist in cooperating internationally to resolve environmental problems.

The Africa Commission has not yet been given the opportunity to deal with Article 24 of the Charter as no complaints have been submitted, which allege the violation of satisfactory environment per se, neither has the commission taken any independent initiative to promote the right. Despite the lack of action on this right at the Commission, it is increasingly becoming important and relevant to Africa, especially after the toxic waste dumping of 1988 in some African countries by international corporations. After the discovery of the toxic waste dumps, the OAU took quick action to forestall future occurrences. The same year the OAU Council of Ministers passed a resolution condemning the export of toxic wastes to Africa, and emphasizing that it is a crime against Africa. This resolution was followed by an OAU Convention banning the importation of toxic waste into Africa. In addition, the African Economic Community Treaty concluded in Abuja, Nigeria on 3 June 1998 requires states parties to improve the environment and take steps against the dumping of toxic wastes.

It follows, therefore, that in interpreting the obligations enshrined in Article 24 of the African Charter, the primary responsibility lies with states parties to adopt measures that will effectively address environmental degradation. The right of the individual against the state is contingent upon the existence or otherwise of these measures, and where a demand for such measures results not in assistance but in the violation of other fundamental human rights of the individual. Individuals, in addition, should have the right in domestic law of private action against a direct violator of his or her right to a healthy environment.

AGBAKWA, SC ‘RECLAIMING HUMANITY: (2002) 5 Yale Human Rights and Development Law Journal 177

A point very often missed in human rights praxis is that economic, social and cultural rights (ESC) ‘are the only means of self-defense for millions of impoverished and marginalized individuals and groups all over the world’. Despite the international rhetoric on the equal relevance, interdependence, and indivisibility of all human rights, in practice states have paid less attention to the enforcement and implementation of ESC, and their attendant impact on the quality of life and human dignity of the citizenry, than other rights. African states, still living with the nightmares of slavery and colonial exploitation, are perhaps unsurpassed in this dreamy, rhetorical exercise.

African states ought to take the lead in enforcement of ESCR, given African’s deplorable socio-economic conditions. They ought not to emulate the industrialized states of the North which can afford the luxury of hollow rhetoric in the implementation of ESCR. Regrettably, African states have so far failed to match their words with appropriate, sufficient action. Where African leaders have asserted the importance of satisfying ESCR as part of protecting other rights, some have done so with the intention of using this rhetoric as a ploy to suppress civil and political rights.

Africa’s worsening socio-economic conditions, and resulting exacerbation of civil and political strife coupled with the current lack of interest in the enforcement of ESCR, renders the effective realization of human rights on the continent a remote possibility. Even if largely unintended, the neglect of ESCR, a substantial part of an indivisible whole, has brought about this sad state of affairs. This article contends that there is an urgent need for a change of attitude and a relocation of emphasis from neglect and discriminatory enforcement of human rights to respect and balanced, holistic enforcement. Given the prevailing socio-economic circumstances in Africa, ESCR remain the cardinal means of self-defense available to the majority of Africans.

. . .

In the 1993 Vienna Declaration, the consensus opinion recognized the futility inherent in entrenching civil and political rights without the corresponding ESCR. This consensus emerged despite the bipolar (East-West) ideological differences, which then dominated international relations, and led to the implementation of the Universal Declaration of Human Rights (UDHR) by means of two international covenants, and continue to have grave implications for ESCR. Long before the Vienna Declaration, the UDHR set the parameters for evaluating the legitimacy of governmental actions by codifying ‘the hopes of the oppressed, [and] supplying authoritative language to the semantics of their claims’. The euphoric ‘Never Again’ declaration by the victorious powers after World War II was intended to encapsulate humanity’s resolve to banish human misery in all its ramifications, whether arising from physical abuse or from want.

If the purpose of government is provide for the welfare and security of all citizens, governments fail to fulfill this purpose when they commit to enforcing only civil and political rights. Such an ostrich-like posture denies the various forms of state abuse against which the citizen must be protected: Above all, the state’s neglect of its citizens. Even opponents of enforceable ESCR recognize this axiom. The de facto commitments of many Western states to a welfare ethos, despite, despite their official opposition to ESCR, assures a high degree of compliance in protecting the rights of their citizens.

Modern governments are active participants, not passive spectators, in events that fundamentally impact the ability of the people to lead a meaningful and dignified life. Governance ceases to be meaningful when the majority of the people is put in a situation where it cannot appreciate the value of life, let alone enjoy its benefits, and where it lacks the appropriate mechanisms to compel change. Where human survival needs frequently go unmet, as in Africa, protection of human rights ought to focus on ‘preventing governments from neglecting their citizens’.

A point that is often overlooked in contemporary human rights discourse and practice is that the greatest benefit of guaranteeing enforceable rights is the assurance it gives to people that effective mechanisms for adjudicating violations or threatened violations of their rights are available. As events in many parts of Africa have shown, the absence of such as gives the impression  that resort to extra-legal means, such as armed rebellion, is the only way to improve one’s condition or challenge governmental abuse and neglect. Most current African conflicts consist of people who are fighting not against themselves but against poverty and governmental inaction in the face of destitution. This conflict usually is due to many years of impoverishing neglect and to the absence of other viable ways of compelling meaningful change. Because governments are increasingly expected to meet the basic needs of their citizens, there is growing tendency to demand results in militant terms, particularly in the absence of a proper forum to compel governmental action. As Callisto Madavo, World Bank Vice President for the African region, observes, ‘Africa’s wars are not driven . . . by ethnic differences. As elsewhere, they reflect poverty, lack of jobs and education, rich natural resources that tempt and the sustain rebels and [ineffective and insensitive] political systems . . .’

These are, for the most part, socio-economic and political conflicts among ethnically differentiated peoples. Although holistic protection of all rights will not prevent every conflict, it will defuse the majority of conflicts that are triggered or sustained by those who exploit abject socio-economic conditions. Scholars have demonstrated a casual link between these conflicts, which can be seen as a people’s violent resistance to their deplorable socio-economic conditions, and the absence of perceived modes of effecting a peaceful change.

…

This relationship between deprivation and conflict underscores the fundamental link between protection of human rights and stability. The intimate relation between stability and human rights, in turn, reinforces the necessity of guaranteeing the enforcement of all human rights without exception. Since the different rights are interconnected and operate in support of each other, it logically follows that the full realization of one set remains dependent on the realization of the other. In a state of instability resulting from the denial of basic ESCR, it becomes difficult, if not impossible, to realize civil and political rights, and vice versa.

Apart from the instability it causes, the non-realization of ESCR creates insurmountable obstacles to the enjoyment of civil and political rights. People can only be free from abuse and exploitation when they have what it takes to assert their rights and free themselves from exploitative rule. Because the majority of Africans are illiterate and poor, they lack the requisite knowledge and means to assert their rights, let alone enjoy them. As UO Umozurike observes:

A great impediment to the attainment of civil and political rights is constituted by illiteracy, ignorance and poverty. To the many rural dwellers in any African state, and indeed to the urban poor, the lack of awareness or means make it impossible for them to assert their rights. They are very much at the mercy of their rulers.

Thus, even a society interested in protecting only civil and political rights should give equal priority to ESCR as a practical means to achieving the former. An absence of the latter commitment deepens a collective feeling of injustice. The majority, comprised of the more vulnerable members of society, cannot but feel that it has been denied an accepted forum for the recognition and redress of injustices. Moreover, the non-enforcement of ESCR ridicules the so-called autonomy of the individual, a concept that is the linchpin of civil and political rights. Adequate socio-economic conditions must exist as a precondition to personal autonomy.

…

African states have not failed to recognize the dangers of selective- as opposed to holistic- recognition of human dignity. The African Charter remains a testament to the collective recognition of the indivisibility of human rights and dignity. As parties to the Charter, African states apparently appreciate the necessity of a holistic approach to enforcement. While this must be pursued at the international and regional levels-as the African Charter seeks to do-the locus of active enforcement must be the domestic arena where the mechanisms of enforcement will be within easy reach of aggrieved citizens and thus more widely utilized. Moreover, international protection or mechanisms are designed to complement the domestic protection of human rights.

…

Anything short of a holistic enforcement of human rights at the domestic level belies the African Charter’s recognition that ‘the satisfaction of economic, social and cultural rights is guarantees for the enjoyment of civil and political rights’.

…

The excuse of impossibility of performance due to underdevelopment, often put forward by African leaders and some scholars, does not represent the whole truth. It is too often a rationalization for lack of political will and the continued elevation of luxury over necessity.

The Economic, Social and Cultural Rights

Unlike other international and regional human rights instruments, the African Charter spearheaded the holistic approach to human rights by including civil and political rights and economic, social cultural rights in a single human rights document. In addition, the preamble to the Charter clearly demonstrates stipulating that it was essential to pay particular attention to the right to development, and civil and political rights cannot be dissociated from economic, social and cultural rights. In fact, the Charter sees the satisfaction of economic, social and cultural rights as constituting the guarantee of civil and political rights (preamble, Para. 7). However, unlike other instruments, the Charter contains no express guarantees of the right to social security, food, adequate standard of living or housing, or prohibition of forced labour.

What is the status of implementation of socio-economic and cultural rights? Read Article 2!

• The Right to work in Equitable and Satisfactory Conditions (Articles 15)

Article 15 provides:

Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work.

Read Articles 6-9 of ICCPR! What shortcomings you notice in the African Charter? As you can see from this provision, African Charter leaves out a lot of guarantees and details adequately set out under ICCPR.

Article 15 of the African Charter does not per se task state parties to provide work for every person. It rather presumes a situation where there is or will be work to do, and lays down obligations of state parties in such situations. On the other hand, it obligates states to adopt measures and programs that will not only lead to job creation, but also ensure a conducive work environment. Though not expressly stated in the Charter the concept of right to work under equitable and satisfactory conditions generally implies fair and equal wages, the right to promotion where appropriate, the right to follow one’s vocation and to change employment, reasonable work hours, right to paid vacation (leisure and rest) and the likes. The interpretation of Article 15 should necessarily include these guarantees internationally recognized. Do you agree?

The other deficiency in the Charter is the non-recognition of trade union rights as relating to the right to work. So what will be the place of this right? Can we say that it can be invoked under the freedom of association and assembly provisions? The African Commission has elaborated in one of its Guidelines for the Submission of State Reports (1988). Under the Guidelines, “states are obliged to provide information on laws, regulations and court decisions that are designated to promote, regulate or safeguard trade union rights . . . of course, the relevance of ILO Conventions in this area should also be considered.

The African Commission has had few instances to rule on the right under consideration. In its decision on a communication alleging violations of the Charter by Angola on the occasion of the expulsion of nationals of western African countries, the commission stated, that this type of expulsion “calls into question a whole series of rights recognized and guaranteed in the Charter, such as the right [. . .] to work”. In another case concerning the imprisonment of one Cameroon’s magistrate and the refusal of reinstatement after being released, the Commission found violation of article 15. Because, it had prevented him from working as a magistrate even though others condemned in similar circumstances had been reinstated.

• The Right to Health (Article 16)

Article 16 of ACHPR on the right to health states:

(1) Every person shall have the right to enjoy the best attainable state of physical and mental health, and

(2) States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

According to the above provision, what is the right recognized and the undertaking assumed by the states (obligation of means or result)? Compare with Article 12 of ICESCR!

Expecting any state to directly provide for the medical cost of every person within its territory would be unimaginable even if that state enjoys a rich economy. The provisions of Article 16 speak to health care rather than health as a concept of well-being of every individual. A state can not guarantee the physical and mental well-being of every individual. But a state can and should provide a conducive atmosphere that would enhance the enjoyment of good health care than undermine it. States must adopt measures in the field or primary health care and a comprehensive program of universal immunization against infectious diseases plus the prevention and treatment of endemic, occupational and other diseases. Article 12 (2) of ICESCR, would be a good guideline for the precise objectives to the measures the state must take. In addition, states have to undertake educational programs on the prevention and treatment of health problems.

However, the approach of the African Commission to the right to health is violation-oriented, that is with out inquiry into claim of financial inability. On allegations of mismanagement of public finances and the failure of the government of Zaire to provide basic services and shortage of medicines, the Commission found that “the failure of the government to provide basic services such as safe drinking water and electricity and the shortage of medicines” constitutes a violation of Article 16 [communication 100/93]. The Commission also found Nigeria in violating the right when it prevented detainees under its custody access to medical care [Com. 152/96].

• The Right to Education [Article 17]

Article 17 of the African Charter states:

(1) Ever individual shall have the right to education

(2) Every individual may freely take part in the cultural life of his community.

(3)   The promotion and protection and protection of moral sand traditional values recognized by the community shall be the duty of the state.

What do you get from the above provision? Is the right to education adequately addressed under African Charter compared to Articles 13, 14 and 15 of the ICESCR?

The right to education has become of great importance in international human rights law to proponents of both generations of rights. Under European Convention, it is treated as a civil and political right [Article 2, First Protocol to the European Convention]. Under the Inter-American Human Rights mechanism, it is one of the economic, social and cultural rights treated as hybrid rights, which are subject to the individual complaint procedure contained in Article 44 of the American Convention [Article 13 of Protocol of San Salvador).

ICESCR and other regional instruments contain elaborate provisions on the extent of the right to education. Article 17 of the African Charter lacks specificity on the contents of the rights such as compulsory nature of primary education, freedom of choice of parents, freedom to establish private educational institutions, protection of intellectual property and so on. The African Commission has identified some contents of the rights in its Guidelines for the Submission of State Reports. The Guidelines show that the right to education comprises the right to primary education, the right to secondary education, the right to post-secondary education, the right to fundamental education, the right to choice of schools, and the principle of free and compulsory education for all. However, still the contents of the above enumerated rights need to be understood in light of universally accepted standards such as under ICESCR. Nmehielle says that the African Commission will have to consider still such broader issues in the right to education as the right to receive education, the right to choice of education and the right to teach. The right to choice of education includes the right that allows parents to make inputs to the kind of education they think is best for their children. Thus, it will be through the choice of education that one may freely take part in the cultural life of his or her community, with a view to promote and protect the moral and traditional values recognized by the community.

The right to teach raises some questions as: Is a teacher limited to a set-out curriculum? To what extent can a teacher go outside the prescribed curriculum to impart knowledge? These questions bring out issues of freedom of expression, freedom of conscience, academic freedom, and to a relative extent, the right to work. Teachers may not go outside or below the prescribed standards, but there should be enough flexibility to allow them to use their expertise to the maximum benefit of all. The right to education under the Charter should be read to include the freedom of individuals and entitles to establish and direct educational institutions in accordance with the provisions of national legislation on education that establish minimum curricular requirements and other standards.

Oguergouz criticizes article 17 of African Charter in that it does not impose a precise obligation on the state i.e. the individuals have no any claim against the state. Do you agree with him? When we come to the case law, the African Commission ruled, in the communication against Zaire, that the closures of universities and secondary schools constituted a violation of Article 17. It also reached at similar finding in the mass expulsion of nationals of western Africa by the Angolan Government. From a number of communications against Mauritania, the Commission in one case stressed the importance of linguistic freedom in the following terms:

Language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.

• Protection of the Family and Other Vulnerable Groups (Arts.18)

What do you think is the distinguishing feature and drawbacks, if any, of this article?

Article 18 of the African Charter uniquely guarantees protection for five different subjects: the family, women, the child, the aged and the disabled. Thus, the provision covers the broader concept of family and those vulnerable groups. This feature of the Charter also contrasts to Articles 10 and 11 of ICESCR and 23 and 24 of ICCPR.

Article 18 (1) & (2), while underscoring the importance of the family as the basic unit of the society, place obligations on state parties not only to protect it and take care of its physical and moral health, but also to assist family members in fulfilling their duties. In addition to the obligations and duty of state to the family, Article 27 (1) and 29 (1) recognize individual duties to the family. Nevertheless, the Charter does not specify exactly what this state duty consists of in order to protect and assist the family [For your comparison see Art. 11 of ICESCR). In affording protection to the family, the state must not only create a legislative framework which will allow the family to develop to its maximum potential, but must also work actively to create societal conditions in which families might flourish. , can you refer to article 15 of the Additional Protocol to the American Convention on Human Rights, for itemized matters of state obligation vis-à-vis family?

One last point, but not least, to be mentioned in relation to rights of family is that the Charter does not contain any provision on the right of every person to marry or establish family.

Third paragraph of Article 18 obligates states to ensure the elimination of every form of discrimination against women and to also ensure the protection of the rights of women and child as stipulated in international declarations and conventions. There are some criticisms that the African Charter grants inadequate protection to the rights of women by inserting one subparagraph under the family provision. Of course, this was anomalous given that it is the continent hosting widespread violation of women’s’ rights from different angles and by different causes. But some say that the Charter has provided wide coverage by making a cross-reference to international declarations and conventions. Articles 60 and 61 of the Charter have also legitimatized resort by way of interpretation. Whatever, the arguments may be, African states have expressed their serious commitment by adopting a separate Protocol to ACHPR on the Rights of women in Africa. We will briefly address OAU/AU initiative in the protection of women’s’ rights in the upcoming unit.

The second part of Article 18 (3) ensures the protection of the rights of the child as stipulated in international declarations and conventions. Similarly the protection of the rights of the child is made to be pursuant to instruments outside the African Charter. These may include: UN Declarations on the Right to Child (1959), UDHR (Art. 16), ICCPR, ICESCR, CRC (1989), OAU Charter on the Rights and welfare of the Child (1990), ILO Conventions and so on. We will discuss some of the basics of child rights instruments in the next chapter.

Article 18 (4) of the Charter stipulates that the aged and the disabled shall have the right to special measures of protection in keeping with their physical or moral condition. This is a very sensitive area of human rights, especially in African where disabled persons for instance, have not been known to be given adequate protection against discrimination, nor opportunities and measures that take their situation into consideration.

Coming to the few case laws of the African Commission (esp. on family), in the aforementioned case of deportation by the Angolan Government, the Commission stressed that “by deporting the victims, thus, separating some of them from their families, the Defendant state has violated and violates the letter of this text [Article 18 (1)].

In connection with another communication alleging, among other things, the illegality of the expulsion by the Zambian Government of two political figures, William Steven Banda and John Luson Chinula, the Commission held that:

by forcing Banda and Chinula to live a stateless persons under degrading conditions, the government of Zambia has deprived them of their family and is depriving their families of the men’s support, and this constitutes a violation of the dignity of a human being, thereby violating Article 5 and Article 18 (1) (2).

Economic, Social and Cultural Rights

Poverty poses major threats to human rights in Africa. Not surprisingly; socio-economic rights play a central role in current discussion about human rights in Africa.