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.

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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.

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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.

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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.

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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’.

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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.

The Civil and Political Rights in African Charter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and called upon all state parties

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

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

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

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

Article 5 provides:

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

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

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

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

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

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

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

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

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

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

Under Article 6 of the African Charter

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

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

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

• The Right of Fair Trial [Article 7] 426

Article 7 of the African Charter provides that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Freedom of Conscience and Religion [Article 8]

Article 8 previous as follows:

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

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

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

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

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

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

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

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

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

Article 9 of ACHPR provides that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 10 provides

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

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

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

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

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

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

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

• Other Rights

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

Rights Guaranteed under African Charter

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

State Obligations under the ACHPR

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

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

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

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

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

The Principles of Non-discrimination and Equality

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

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

Article 2 provides:

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

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

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

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

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

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

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

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

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