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Human and Peoples′ Rights: Distinctive Features of the African Charter

Published online by Cambridge University Press:  28 July 2009

Rose M. D'Sa
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Extract

The African Charter on Human and Peoples' Rights was adopted unanimously in June, 1981, by the Organisation of African Unity (O.A.U.). Although it is not yet in force its adoption represents an important landmark in the protection and promotion of human rights on the African continent. The O.A.U. has in the past been sharply criticized for its apparent indifference to the suppression of human rights in a number of independent African States. Although the founding Charter of the O.A.U. of 1961 makes reference to the issue of human rights in Article II l (e) and also mentions in general terms the need to promote the welfare and well-being of the African people, its primary concern has been with the eradication of colonialism and apartheid on the African continent. In this context it is clearly committed to the achievement of human rights and self-determination of the peoples of South Africa and Namibia. However, other breaches of human rights on a widespread scale, such as the massacre of thousands of the Bahutu tribe of Burundi in 1973, was neither discussed nor condemned by the O.A.U. Similarly, the mass murders and other atrocities during the former regime of Idi Amin (Uganda 1971–79) and subsequently and also those which took place during the regime of Jean-Bedel Bokassa, (Central African Republic 1966–79) and Marcias

Type
Research Article
Information
Journal of African Law , Volume 29 , Issue 1 , Spring 1985 , pp. 72 - 81
Copyright
Copyright © School of Oriental and African Studies 1985

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References

1 The text (also called the Banjul Charter) is reprinted in (1982) XXI I.L.M. 59Google Scholar; (1981) 27 International Commission of Jurists' Review 76 and Basic Documents in International Law, (Brownlie, I. (Ed.), 3rd ed. 1983), 75Google Scholar. It is hereinafter referred to as the “African Charter” or as “the Charter".

2 The African Charter has the legal status of an international convention or treaty and will come into force in accordance with its Article 63, three months after a simple majority of the Member States of the O.A.U. have deposited instruments of ratification or adherence with the O.A.U. Secretary-General. As at July 1985 there were fifteen ratifications of the African Charter. These came from Congo, Egypt, Gambia, Guinea, Liberia, Mali, Nigeria, Rwanda, Senegal, Sierra Leone, Togo, Tunisia, United Republic of Tanzania, Burkina Faso (Upper Volta), Zambia.

3 See for example, Aluko, O., “The O.A.U. and Human Rights”, (1981) 71 The Round Table [The Commonwealth Journal of International Affairs], 234—242CrossRefGoogle Scholar.

4 Article 11(1) of the O.A.U. Charter states the purposes of the O.A.U. which include, in paragraph (2) the promotion “of international co-operation, having due regard to the Charter of the U.N. and the Universal Declaration of Human Rights."

5 See Article II 1(c) and Article 111(6) of the O.A.U. Charter.

6 See Article II(1 )(d) of the O.A.U. Charter.

7 U. O. Umozurike, “The African Charter on Human and Peoples' Rights” (1983) 77 A.J.I.L. 902 at 902.Google Scholar

8 Umozurike, , loc. cit., 903.Google Scholar See also Umozurike, “The Domestic Jurisdiction Clause in the O.A.U. Charter“, (1979) African Affairs, 197 at 199.Google Scholar For earlier inter-tribal conflicts in Rwanda and Burundi see Andemicael, B., Peaceful Settlement Among African States: Roles of the U.N. and the O.A.U., UNITAR, New York, (1972) 17–20Google Scholar.

9 See further Umozurike, , African Affairs loc. cit., 198.Google Scholar On the subject of the expulsion of the Ugandan Asians see Sharma, V. and Wooldridge, F., “Some Legal Questions Arising From the Expulsion of the Uganda Asians” (1974) 23 I.C.L.Q. 397–426Google Scholar. For more recent events in Uganda, see Amnesty International Report 1983 at 88Google Scholar.

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14 Article III(2) of the O.A.U. Charter provides that Member States shall adhere to the principle of “non-interference in the internal affairs of States”.

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16 The draft African Charter of Human Rights and Rights of Peoples was prepared by a Ministerial Conference convened by the O.A.U. Assembly which met in Dakar, Senegal in November 1979 and which was attended by African ministers of justice and other legal experts. Further meetings were held in Banjul (The Gambia) in June 1980 and January 1981. The draft Charter was then passed on to the O.A.U. 37th Ordinary Session of the Council of Ministers in June 1981 for its consideration and was finally approved without amendment by the S.A.U. Assembly on 17 June 1981.

17 O.A.U. Doc. CAB/LEG/67/3, Rev. 1 at I.

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19 European Convention for the Protection of Human Rights and Fundamental Freedoms, 11 4, 1950, (1953) 213 U.N.T.S. 22;Google ScholarBrit, Gr.. T.S. No. 71 (Cmnd. 8969). Entered into force 09 3, 1953.Google Scholar Text reprinted in Brownlie op. cit., hereinafter referred to as “the European Convention.”

20 American Convention on Human Rights, 11 22, 1969, O.A.S. T.S. No. 36 at p. 1Google Scholar, O.A.S. Doc. OEA/Scr.L/V/II. 23 doc. 21 rev. 6. Entered into force 07 8, 1978. Text reprinted in (1970) IX I.L.M. p. 99Google Scholar, hereinafter referred to as the American Convention.

21 See above, n. 4.

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26 Nickel, , loc. cit., 45.Google Scholar

27 Howard, Rhoda, “Evaluating Human Rights in Africa: Some Problems of Implicit Comparisons“, (1984) 6 Human Rights Quarterly, 160 at 179Google Scholar.

28 African Charter Article 30. Hereinafter referred to as “the African Commission".

29 See below, p. 80, text accompanying n. 61.

30 See above, n. 19.

31 See above, n. 20.

32 See Gittleman, , loc. cit., 674;Google ScholarOkere, B., “The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems,” (1984) 6 Human Rights Quarterly, 141–159Google Scholar.

33 Article 4 of the African Charter states: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No-one may be arbitrarily deprived of this right."

34 Article 6 of the African Charter states: “Every individual 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 previously laid down by law. In particular, no-one may be arbitrarily arrested or detained."

35 See Asante, S.K.B., “Nation Building and Human Rights in Emergent African Nations“, (1969) 2 Cornell International Law Journal, 72 at 99Google Scholar.

36 See Higgins, Rosalyn, “Derogations Under Human Rights Treaties“, (1976–1977) XLVIII Brit. Y.B. Int'l L.281 at 281.Google Scholar

37 African Charter Article 7(1)(a).

38 African Charter Article 7 (l)(b) and (d).

39 Mumba, D. K. C., “Prospects for Regional Protection of Human Rights in Africa”, (1982) Holdsworth Law Review, 101–120 at 105, 106Google Scholar.

40 See Hannum, “The Butare Colloquium on Human Rights and Economic Development in Francophone Africa“, (Butare, Rwanda, 1979) 1 Universal Human Rights 63. Other important discussions include the Seminar on Human Rights in a One-Party State (Dar-es-Salaam, , United Republic of Tanzania, 09 23–28, 1976Google Scholar) reported in Human Rights in a One-Party State, International Commission of Jurists, 1978Google Scholar

41 See p. 80 text ton. 61.

42 See further, Gittleman, , loc. cit. at 676.Google Scholar

43 See further Dias, E., “Study of the Individual's Duties to the Community and the Limitations on Human Rights and Freedoms Under Article 20 of the U.D.H.R.” U.N. Doc. E/CN.4/Sub.2/ 432 Rev. 1, Add. 1–6 (1979)Google Scholar.

44 Mumba, , loc. cit., at 114.Google Scholar

45 See Hannum, loc. cit., 65.

46 The wording is very similar to Article 1(1) of both U.N. Human Rights Covenants of 1966, see above, n. 25.

47 See Dinstein, Y., “Collective Human Rights of Peoples and Minorities” (1976) 25 I.C.L.Q. 102 at 104Google Scholar.

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50 See Mojekwu, , loc. cit., at 91.Google Scholar

51 Ibid., 90. Examples of this are numerous and include the Biafran attempt at self-determination in Nigeria, the attempt by the Shaba Province (Katanga) to separate from Zaire, and the war waged by the Eritreans against Ethiopia to secure self-determination. For the situation in the Western Sahara see inter alia Shaw, “The Western Sahara Case,” (1978) XLIX B.Y.B.I.L. 118 especially at 144Google Scholar.

52 For discussion of previous efforts of African States to gain international recognition for a concept of permanent sovereignty over natural resources within the U.N., see Gittleman, , loc. cit., at 680.Google Scholar

53 Gittleman, ibid. 682.

54 Some writers reject the notion of economic and social “rights” altogether on the basis that they are not immediately enforceable. See for example, Frankel, G., “Are Economic Rights Human Rights?” (1979) (No. 50) Freedom at Issue, 10–12. For the opposite viewpoint see Hannum, loc. cit., p. 71Google Scholar.

55 See further Moskowitz, M., International Concern with Human Rights (1974) 155Google Scholar; Study of the U.N. Secretary General on “The International Dimensions of the Right to Development as a Human Right in Relation with other Human Rights Based on International Co-operation, including the Right to Peace, Taking into Account the Requirements of the N.I.E.O. and Fundamental Human Needs”, U.N. Doc. E/CN.4/1334 (1979) paras. 14–27, and “Report of the Working Group of Fifteen Governmental Experts”, U.N. Doc. E/CN.4/1983/11 (1983).

56 For a discussion of some further legal problems which may arise in respect of the “peoples” rights under the Charter see Neff, “Human Rights in Africa: Thoughts on the African Charter on Human and Peoples' Rights in the Light of Case-Law from Botswana, Lesotho and Swaziland” (1984) 33 I.C.L.Q. 331Google Scholar.

57 Reporting provisions are also included in the U.N. Covenant of 1966 on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights, in Articles 16 and 40. respectively.

58 See M. Mbacke, “Problèmes posés par I'application de la Charte Africaine des Droits de 1'Homme et des Peuples,” paper presented at an International Svmposium in Dakar, see above. n. 48.

59 Article 45 of the African Charter.

60 See Articles 52 and 53 of the African Charter.

61 See Umozurike, , in A.J.I.L, loc. cit., 909.Google Scholar

62 Article 9 of the Charter of the O.A.U. provides that the Assembly may also meet in Extraordinary Session at the request of any Member State but this requires the approval by a two-thirds majority of the Member States and is therefore a cumbersome procedure for dealing with urgent cases.