“The African Charter, 1981 provides distinctively the rights, duties and the implementation procedure for the enforcement of rights”. Give justification for the statement.-illustrate & explain
Introduction
The African Charter on Human and Peoples’ Rights is an international human rights initiative that was enacted to promote and protect human rights and basic freedoms in the African continent. The Charter was initiated by the Organization of African Unity (OAU), known today as the African Union (AU). The charter came into existence when the Assembly heads of State and Government of the OAU decided in July 1979 to create a group of experts to draft an African Charter on Human and People’s Rights. The charter was adopted by OAU on 7 June, 1981 and the charter came into effect on 21 October 1986.
Overview of the Charter
The African Charter 1981 is a collection of 68 Articles. As a result of human rights violations undertaken by African leaders such as Idi Amin of Uganda, Dr. Banda of Malawi, Emperor Bokassa of Central African Republic, and Mengistu of Ethiopia, the African Charter is distinctive in its attempt to attach an “African fingerprint” on human rights discourse. The African Charter has received praise from human rights scholars for having economic, social, and cultural rights as well as civil and political rights in one binding instrument. Its preamble affirms the cardinal principle of interdependence and indivisibility of all human rights by expressly declaring, “Civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality.” Among other rights, the African Charter gives express recognition to the right to property, the right to work, the right to enjoy the best attainable state of physical and mental health, the right to education, and the right to family protection, including special measures for the protection of the aged and disabled.[1] Another noteworthy feature of the charter is that it does not cater for the needs of people only, also individuals. If we consider certain articles, individual rights and freedoms such as civil, cultural, economic include rights to non-discrimination (article2). Article 6 ensures liberty and security of person; article 7 demands fair trial. According to article 9, people are expected to receive, express and disseminate information and opinions. Articles 14 and 17 cover areas of property and education respectively. Article 19 ensures that everyone is treated as equal. People may freely dispose of their wealth and natural resources (article 21); people have the right to a general satisfactory environment favorable to their development (article 24). The duties of the individual included in the charter require that: an individual’s rights and freedoms are only exercised with due regard to the rights of others (article 27). According to article 29, by virtue of their physical and intellectual abilities, an individual serves their national community (article 29). An individual works to the best of their abilities and competence and pays taxes imposed by law in the interests of the society; and an individual preserves and strengthens social and national solidarity (article 29). These are some of the charters and there are others which lay down other rights, duties and obligations of civilians as well as the sovereign authority.
Historical perspective of Human Rights in Africa
For humanity to exist it is imperative that promotion and protection of human rights is established. Every nation has its own code of protecting their human rights. England’s laws regarding the protection of human rights are contained in the Magna Carta, while different declarations concerning rights and freedoms have been prepared by and for the societies to which their promoters belonged. Soon after the African states were formed, they immediately became members of the United Nations and promptly accepted the United Nation’s principles and norms. It is important to note that before the charter was mandated, human rights were recognized in the political constitutions of almost all independent African states. Some examples include Gabon, Nigeria, Rwanda, Burkina Faso, Guinea, Liberia, Malawi, Tanzania, Cote D’Ivoire, Cameroon, Morocco and Togo. These states all contained lofty human rights provisions. At independence, the French-speaking African states invariably declared, in the preambles to their constitutions, adherence to the principles of democracy and human rights as defined in the Declaration of the Rights of Man and Citizen of 1789 and in the Universal Declaration of Human Rights of 1948. Similar steps were taken by English-speaking African. Institutional provisions essential for the enjoyment of human rights, such as an independent judiciary, are also constitutionally established in African countries’ constitutions. The departure of colonial rule in the 1950’s and 1960’s and express codification of human rights norms in the domestic legal systems of the African states spelt a new beginning for a better Africa, however unprecedented, massive and systematic violations of basic human rights continued to be committed in the independent African states. Colonial rule may have ended, but the legacy remained Tribal wars and conflicts erupted that threatened the disintegration of African countries. There were gross violations in most of the states because human rights still were politically motivated.
There were several factors responsible for this. They were
i. Most of the new states in the 1950 are quickly dismantled. Multiparty systems were replaced by one party system or military dictatorships. Military coups are, thus, regular feature in several of the states.
ii. Military coups are accompanied by serious human rights violations. For example, in 1975, all opponents of Siaka Stevens in Sierra Leone were executed. Also in 1984, more than 35 people were executed after military trials in Cameron.
iii. For most of the states, freedom of press, free and regular elections, right to life are still luxuries. Mass executions, public and secret execution of opposing elements have been common feature in many states. Such practices can be seen in Guinea, Uganda, Liberia, Ghana Zaire, etc. In many African states newspapers are still owned by the Government.
iv. Ethnic and religious differences have led to gross violation of human rights. Example: Burundi and Rwanda. In 1963 invasion of Rwanda from Burundi led to killing of 12000 Tutsis.
v. Poverty, lack of education, unawareness of fundamental human rights among the people of Africa is also a factor responsible for violations of the human rights.
From the points above it is understandable how appalling was the condition of Human Rights in Africa. The charter was hence initiated to help curb such violations.
Contents of the Charter
The African Charter is classified into Three Parts; Part I focuses on Rights and Duties, Part II focuses on Measures of Safeguard, Part III is about General Provisions.
In Part I there are two chapters, Chapter I covers human and people’s rights and accounts for a total of 26 Articles.[2] So if we observe these 26 Articles we can deduce that the Charter covers almost all civil, political, economic, social and cultural rights including third generation rights such as sovereignty over resources, development, international peace and environment. The state parities are bound by the Articles to submit a report on the legislative or other measures that would ensure that rights, duties and freedoms are recognized[3] and such rights, duties and freedoms are promoted via teaching, education and publication that would allow people to understand these rights. Courts should be called in times of promotion of the stated rights and freedoms.
Chapter II focuses on Articles 27-29 and it focuses on the group and duties and how it connects the society in order to fulfill the basic needs as opposed to promotion of individual interests. Historically Africa specialized in allocation of social goods however according to the Charters, it is imperative that economic, social and cultural rights are ensured and only then will civil and political rights be enjoyed.
Part II focuses on the Measure of Safeguard and there exists four chapters. Chapter I is called Establishment and Organization of the African Commission on Human and Peoples’ Rights. This chapter covers Articles 30-44. Under the African Charter, two bodies were established for ensuring the promotion and protection of human and people’s rights. These are:
i. The African commission on Human and Peoples rights
ii. The Assembly of heads of State and government of OAU
The African commission on Human and Peoples rights is built within the standards of the Organization of African Unity. Article 30 mandates the establishment of the Commission to promote human and people’s rights and ensure their protection in Africa. The commission was established in 1987 and is located in Gambia.
The commission shall consist of eleven members and must exhibit high standards of morality, integrity, impartiality and competence in dealing with people’s rights and its favorable if members having legal background. the chosen members should serve in their personal capacity and not as representatives of States. These members have the right to diplomatic privileges as stated in the General Convention on the privileges and Immunities of the Organization of African unity.
The Assembly of heads of State and government of OAU is second in command for the promotion and protection of human and people’s rights and the most important freedoms as stipulated in The African Charter. It by itself can exclude the African Commission however it is devoid of judicial powers.
Chapter II is about the Mandate of the Commission and it is dictated by Article 45. The mandate contains four functions. Apart from those mentioned, The African Charter has also sanctioned an implementation machinery by the help of which a report is submitted about the legislative and other measure taken to ensure the freedom and rights as dictated by the charter. There are also ways by which State Parties or individuals can bring about the complaints. By Inter-state complaint mechanism only State Parties can bring upon complaints regarding violations of human rights in the form of writing. There are two methods of inter-state complaint. The bilateral procedure allows one State Party to file complaint against another State Party in violation of provisions of the Charter. The Direct Procedure is also the same but the complaint is made directly to the commission by addressing a communication to the chairman. The individual complaint mechanism allows individuals as well as national and international institutions to send communications to the commission. However there are some requirements for the communications to be considered.
· Since civil, political and socio-economic rights are jointly considered, African States may concur that there lies no difference among the three, and they are justifiable.
· Opposing discrimination of ethnic minorities will lead to more opportunities created
· Allowing machinery implementation by both commission and court allows the two to promote and protect human right without the two getting in each other’s way
· By virtue of Article 3(1) of the protocol to the African Court on Human and People’s rights, the court can also rely upon other relevant Human Rights instrument sanctioned by the state.
· Although article 55 puts some considerations before communication can occur, it is not certain that individual communications are allowed. The Commission at its 33rd session has established a procedure for dealing with individual communications and considered some based on their merits.
Weaknesses of the Charter
· There lies some vagueness in the definition of certain rights. For example the charter does not discuss the problems surrounding language, or define what does it mean by ‘human being’ or the charter doesn’t mandate formation of trade union or form strike to wage their demands.
· Although the charter wishes to protect human rights, but there lies no coercive machinery to foster performance of the recommendations that are expected of the charter.
Conclusion
The African Charter was not designed only to express the internationally recognized rights at the African level. To be precise, the Charter manifests the uniqueness of some of the human rights concerns of Africa from the rest of the world. Thus, it is an instrument that caters for African circumstances in particular .The peoples’ rights of the African Charter are aimed to address the unique situations of Africa. These rights are concocted in a way that is unprecedented in the international and other human rights system, and represents the continent’s reaction to its colonial past and its resolve to uphold its cultural values as expressing the identity of its peoples. Significantly, this novel approach is a legal and institutional representation of the urgent need to end the misery of peoples by redeeming their dignity. In this sense, it is meant to provide a comprehensive framework to respond to the current multifaceted crisis in the relationship of the state with its peoples. Existence of repression, domination and state sponsored attacks on some diverse cultures indicate people’s rights have not been fully realized. Yet the recognition of people’s rights is commendable and is sufficient warrant that people’s rights in Africa to have a bright future. Therefore the statement “The African Charter, 1981 provides distinctively the rights, duties and the implementation procedure for the enforcement of rights” is justified.
Bibliography/References
African Commission on Human and Peoples’ Rights. (n.d.). Retrieved from http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf
African Union. (n.d.). In Wikipedia, the free encyclopedia. Retrieved March 14, 2013, from http://en.wikipedia.org/wiki/African_Union
Brownlie, I. (1979). African boundaries: a legal and diplomatic encyclopaedia. London, C.
Hurst.
Chirwa, D. M. Toward Revitalizing Economic, Social, and Cultural Rights in Africa: Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria. 1.
Hazarika, R. THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS, 1981. 11-21. Retrieved from http://ssrn.com/abstract=1696363
Higgins R ‘‘Derogation under Human Rights Treaties’’ in 48 British Yearbook of International
Law 281 (1978) p 281.
Organisation of African Unity. (n.d.). In Wikipedia, the free encyclopedia. Retrieved March 14, 2013, from http://en.wikipedia.org/wiki/Organisation_of_African_Unity
Ouguergouz, F. (2003). The African Charter on Human and Peoples’ Rights. Martinus Nijhoff.
World Health Organization (n.d.). African Charter on Human and Peoples’ Rights. Health and
Human Rights, 1-2. Protection of Human Rights in Africa: African Human Rights in a Comparative Perspective. (n.d.). LEGANET.CD. Retrieved from http://www.leganet.cd/Doctrine.textes/DroitPublic/DH/ProtectionofHR.Kabange.htm#_ftn43
Viljoen, F. (2007). International human rights law in Africa. Oxford, Oxford University Press
[1] Chirwa, D. M. Toward Revitalizing Economic, Social, and Cultural Rights in Africa: Social and Economic RightsAction Centre and the Center for Economic and Social Rights v. Nigeria. 1.
[2] The African Charter on Human and Peoples’ Rights,1981 retrieved from, http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf
[3] The African Charter on Human and Peoples’ Rights,1981 Article 62
[4] The African Charter on Human and Peoples’ Rights,1981 Article 56
[5] Protection of Human Rights in Africa: African Human Rights in a Comparative Perspective. (n.d.). LEGANET.CD. Retrieved from http://www.leganet.cd/Doctrine.textes/DroitPublic/DH/ProtectionofHR.Kabange.htm#_ftn43