Table of
Contents
1.
Introduction
2.
The African Charter on Human and Peoples’
Rights
3.
The African Commission on Human and Peoples’
Rights
4.
The African Court on Human and Peoples’
Rights Court
5.
Special Rights
5.1.
Rights of the Child
5.2.
Women’s Rights
6.
Challenges
1. INTRODUCTION
The
international human rights regime advocates for member state to protect,
respect and fulfil fundamental rights of their citizens. Organs of
international and regional institutions such as the United Nations, European
Union, and African Union (AU) further monitor and enforce these obligations
when domestic protection fails. In Africa, the AU, formerly the Organization of
African Unity (OAU), holds a corresponding mission to the realization of human
rights as enshrined in its 1981 African Charter on Human and Peoples’ Rights.
The
evolution of protection of human and peoples’ fundamental rights on the
continent is closely related to the struggle against colonization and apartheid.
During colonialism, the continent was gravely exploited while substantial
violations of political, economic and social rights undermined the lives of
African individuals and began a cycle of repressive regimes. The struggles for
independence were essentially the first human rights movements leading to
self-determination and solidarity later formed under the OAU.
At the
Lome Summit on 11 July 2000, the establishment of the African Union took a
further step in a preventative approach of explicitly encompassing human rights
to its mandate and integrating them into the mandates of all its organs.
The core
organs responsible for human and peoples’ rights at the AU level are;
·
The African Commission on Human and Peoples’
Rights;
·
The African Court on Human and Peoples’
Rights; and
·
The African Committee of Experts on the
Rights and Welfare of the Child
Other
organs such as the Pan-African Parliament (PAP) also have within their mandates
the role to implement, asses and cultivate a culture of human rights and
democracy in Africa.
Under the
realm of international law, these bodies amongst others, aim to ensure
accountability to the numerous rights-violating states in Africa. The
protection of human rights is an interconnected goal of AU organs under the
African Human Rights Strategy and African Governance Architecture.
This
paper will specifically asses the role and mandate of the AU’s main organs and
instruments related to human and peoples’ rights.
2. THE AFRICAN CHARTER ON HUMAN AND PEOPLES’
RIGHTS
The
African Charter on Human and Peoples’ Rights, also known as the Banjul Charter,
was a groundbreaking advancement for human rights in Africa, adopted on 27 June
1981 at the Assembly of the Organization of African Unity. The Charter is
praised for its distinct feature in highlighting the indivisibility of
political, economic, social and cultural rights. It reinforces inalienable and
fundamental rights of both individuals and people groups. Similar to
instruments of Europe and the Americas, this international treaty is ratified and
signed by all African states with the exception of the new state of South Sudan
and non-AU Kingdom of Morocco.
An
international human rights instrument as such requires governments to surrender
part of their sovereignty which many newly formed African nations were hesitant
to concede with during the initial adoption of the Charter in 1981. However,
rights, freedoms and principles of the Charter include non-derogable rights
such as the prohibition of torture, slavery and degrading treatment to the
right to natural resources and cultural development, many of which challenge
domestic affairs of the state. Nevertheless, the high ratification of the
Charter proves necessity and will for cooperation between states as their
demands remain influential in the current African human rights system.
Fundamental and universal rights as those contained in the European and
Inter-American Convention of Human Rights are also listed in the Charter
including the right to equality before the law, liberty, fair trial, freedom of
association and assembly etc.
“The
Banjul Charter is the only human rights treaty to accord explicit protection to
civil and political rights, economic, social, and cultural as well as
collective group rights.”[1]
The emphasis on peoples’ rights is unique to this international treaty and
essential to its function in African communities. There is strong
representation of collective rights and particularly the right to
self-determination associated with the condemnation of colonization. The
Charter unprecedentedly emphasizes rights such as the right to wealth,
property, and satisfactory environment, as vital components for the majority
African populace. These elaborate third-generation rights acknowledged and
granted in the Charter in addition to economic, social, civil and political
rights, are a great advancement and innovation under international law.
3. THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES’ RIGHTS
The
African Commission on Human and Peoples’ Rights is the supervisory mechanism
established in 1987 under Part II of the Banjul Charter with an
interpretational, promotional and protective mandate. The Commission,
headquartered in Banjul Gambia and acts as a quasi-judicial body accepting
complaints from both individuals and non-governmental organizations regarding
violations on the continent. A crucial requirement is the exhaustion of
domestic remedies by the complainant prior to submitting an application to the
Commission.
The
Commission’s protective mandate is articulated in sub-paragraph 2 of Article 45
of the Charter stating its duty to “ensure the protection of human and peoples’
rights under the conditions laid down in the Charter.”[2]
Therefore, rights violated by member states are to be indicted and stopped
through the outlined procedures of Articles 46 to 49 for handling complaints
while protecting the complainant in accordance with the Charter.
Every two
years, State parties are obliged to submit a state report to the Commission on
legislative and other measures taken for the realization of human rights and
freedom of their citizens. The Commission’s communications to the state provide
recommendations, often along with those of international non-governmental
organizations, to either condemn rights-abusive activities and complaints or to
advance the realization of rights within the state. However, these
recommendations are not legally binding resulting in several State Parties
violating rights with impunity. Challenges in limitations and implementation of
the Commission’s recommendations contributed to the creation of the African
Court.
4. THE AFRICAN COURT ON HUMAN AND PEOPLES’
RIGHTS
The
African Court on Human and Peoples’ Rights (AfCHPR), seated in Arusha Tanzania,
was established in 2004[3]
as a result of the 1998 Protocol to the African Charter on Human and Peoples’
Rights[4].
The Court, which is composed by 11 elected judges for a mandate of 6 years
renewable once, was initiated to complement the protective mandate of the
African Commission and exercises jurisdiction that covers “all cases and
disputes submitted to it concerning the interpretation and application of the
Charter.”[5]
The judicial function of the Court is articulated in the Protocol as it serves
as a court of last resort for the continent with a contentious and advisory
jurisdiction. In close correspondence with the Commission, the African Court
seeks accountability of rights-abusive states under international law. Similar
to the European and Inter-American Courts, the African Court uses sources of
case law, international and regional treaties, and information from African
Intergovernmental Organizations in its procedure and judgements.
The Court
has so far received 59 cases[6],
disposed 27 and 7 advisory opinions, referred 4 to the African Commission, and
remains with 32 pending cases so far and 2 applications for an advisory opinion.
However,
while the African Charter and Commission have high ratification rates, only 29
member states of the AU[7]
have signed and ratified the Court Protocol.
The Court
still seeks a voluntary state declaration accepting the competence of it to
receive applications directly from individuals and Non Government
Organizations.
Article
34 (6) of the Court Protocol states that “at the time of the ratification of
this Protocol or any time thereafter, the State shall make a declaration
accepting the competence of the Court to receive cases under article 5 (3) of
this Protocol.”[8]
Burkina Faso, Ghana, Malawi, Mali,
Rwanda, Côte d’Ivoire and Tanzania are the only 7 countries to have made this
special declaration.
Apart
from the current African Court of Human and Peoples’ Rights, the African Union
further envisions its merger with the African Court of Justice to form the
African Court of Justice on Human and Peoples’ Rights. To achieve this, in 2008
the AU adopted a statue on the merger of the two courts which to date has only
been ratified by 5 states; Benin, Burkina Faso, Congo, Libya and Mali. Further
in 2014, the AU further revised the statute to vest the court with a criminal
jurisdiction over 14 crimes namely;
a.
Genocide
b.
Crimes Against Humanity
c.
War Crimes
d.
The Crime of Unconstitutional Change of
Government
e.
Piracy
f.
Terrorism
g.
Mercenarism
h.
Corruption Money Laundering
i.
Trafficking in Persons
j.
Trafficking in Drugs
k.
Trafficking in Hazardous Wastes
l.
Illicit Exploitation of Natural Resources
m. The Crime
of Aggression
For the
new Court to come into force, it would require 15 ratifications.
5. SPECIAL RIGHTS
5.1.
Rights of the Child
One of
the three key institutions of the African Human Rights system under the Charter
is the 1999 African
Committee of Experts on the Rights and Welfare of the Child (ACERWC).
Its main legal text of reference, the African Charter on the Rights and Welfare
of the Child (ACRWC) was adopted in 1990 as the primary human rights tool for
the advancement of children’s rights on the continent.
Its monitoring body the ACERWC consists
of 11 members, and has a mandate, which includes both protective and
promotional aspects drawn from Articles 32-46 of the Children’s Charter. The
Committee, which has its seat in Addis Ababa, also receives periodic state
reports and communications related to violations of the rights of children. To
date the Children’s Charter has been ratified by 47 states. The Committee has
also received and disposed of four communications.
Being the
first and only continent to exclusively initiate a region-specific child rights
instrument, the results of promotional mandates of prior bodies are evident in
the widening scope of rights on the continent. Moreover, the African context of
children’s right has been an evident necessity due to mass violations such as
the use of child soldiers, forced child labour, and child marriage. The ACERWC
is grounded on four principles of non-discrimination, participation, the best
interest of the child, and survival and development. All 53 AU member states have signed the ACRWC
acknowledging the importance of special protection of African children.
5.2. Women’s Rights
The
Protocol to the African Charter on Human and People’s Rights on the Rights of
Women in Africa, also known as the Maputo Protocol, was adopted on 11 July 2003
in Maputo, Mozambique. The Maputo Protocol articulates women’s civil,
political, social, and cultural rights including the elimination of
discrimination and harmful practices against women, the right to dignity, right
to divorce and marriage, and special protection of elderly women, women with
disabilities, women and distress or armed conflict.
An
objective of the Protocol included in Article 14 is the eradication of health
and reproductive rights abusive practices such as female genital mutilation
(FGM), which is most common on the African continent. The Maputo Protocol also
provides special measures to promote political and social equality for women.
The treaty grants women the freedom of choice to exercise control over their
lives following decades of marginalization of women’s rights on the continent. However,
many rights included in the Protocol, such contraception and the total
legalization of abortion, are controversial in the African context and remain
highly contested.
Nevertheless,
the treaty remains a primary legal instrument for the protection and
advancement of women’s rights, advocating their access to education,
employment, healthcare and social equality. The Maputo Protocol is legally
binding to the 21 member states that have ratified it, and guideful to the 43
states that have signed. The only states to abstain from the Protocol are
Botswana, Egypt, Eritrea, and Tunisia.
6.
CHALLENGES
Despite
great advancements of the AU in regards to human rights, challenges remains
with membership to the Protocol to the Court and ratification of AU treaties by
African states in order to exercise jurisdiction over states where violations
continue to occur. The Protocol to the new ACJHR, requiring 15 ratifications
for its establishment, has only been signed by four states: Benin,
Guinea-Bissau, Kenya and Mauritania. The slow yet promising process is arguably
due to the financial difficulties of institutional and legal adjustments more
than political will. The recent establishment of the Special Fund in January
2015 deals with raising fund to initiate and sustain the future Court.
The
international human rights regime generally emphasizes universality for
individual and not group rights. In the African context however, the upholding
of peoples’ rights has been equally fundamental as seen in its emphasis
throughout the Charter. Individual rights and freedoms in the Charter are also
noted to be exercised with due regard to the rights of others. The inclusion of
duties within Articles 27-29 of the Charter is another unprecedented and
innovative feature of human rights in Africa. These duties were included with
the reasoning that civil and political rights must be counterbalanced by duties
of social solidarity. They advocate the participation of individuals in
empowering and strengthening the community, economy and nation. Though
individual and collective rights are equally important according to the
Charter, the inclusion of duties highlights the political and social culture
towards rights on the continent.
However,
the extensive nature of rights provided by these African treaties, certainly do
not guarantee their realization throughout the continent. Africa continues to
face adversities especially in the field of economic and social rights due to
the host of some of the poorest regions of the world. Nevertheless, with the
advancement of human rights law and representation as spearheaded by the
African Union, these individual and groups are increasingly being protected
ensuring accountability measures for perpetrators of mass violations. Concerns
regarding governance, corruption, war crimes, terrorism and security are
concurrently being addressed by the African Human Rights System.
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[5] "Protocol to the African Charter on
Human and Peoples' Rights on the Establishment of the African Court on Human
and Peoples' Rights" at Article 3.
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