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Chanakya National Law University Patna

PUBLIC INTERNATIONAL LAW PROJECT

BANJUL CHARTER : AN ANALYSIS

Submitted by-

Nandini Suman

Roll no.- 756

5th

semester

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ACKNOWLEDGEMENT

First and foremost I thank almighty God for his gracious blessings upon us.

I have taken efforts in this project. However, it would not have been possible

without the kind support and help of many important people. I would like to

extend my sincere thanks to all of them.

I am highly indebted to Dr. P.P Rao for his guidance and constant supervision

as well as for providing necessary information regarding the project & also for

his support in completing the project.

I also want to express my sincere gratitude to all those authors and researchers

whose works helped me to gather various information used in this project. I also

want to thank the college library and honourable librarian for providing me the

needed books.

I would like to express my gratitude towards my parents and family members

for their kind co-operation and encouragement which helped me in the

completion of this project. I would like to express my special gratitude and

thanks to all those people who gave me such attention and time. My thanks and

appreciations also go to my friends for helping in developing the project and

people who have willingly helped me out with their abilities.

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CONTENTS

TOPICS PAGE NO.

1. Introduction 04-06

2. Creation and Development of the Charter 07-10

3. Unique features of the Charter 11-13

4. Rights and Duties under the Charter 14-17

5. Enforcement Regime 18-22

Conclusion

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INTRODUCTION

The African Charter on Human and Peoples' Rights (also known as the Banjul Charter)

is an international human rights instrument that is intended to promote and protect human

rights and basic freedoms in the African continent.

It emerged under the aegis of the Organisation of African Unity (since replaced by

the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted

a resolution calling for the creation of a committee of experts to draft a continent-wide human

rights instrument, similar to those that already existed in Europe (European Convention on

Human Rights) and the Americas (American Convention on Human Rights). This committee

was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981

Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after

the reception by the Secretary General of the instruments of ratification or adherence of a

simple majority" of the OAU's member states), the African Charter on Human and Peoples'

Rights came into effect on 21 October 1986– in honour of which 21 October was declared

"African Human Rights Day".

Oversight and interpretation of the Charter is the task of the African Commission on Human

and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia.

A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on

Human and Peoples' Rights was to be created. The protocol came into effect on 25 January

2004.

In July 2004, the AU Assembly decided that the ACHP would be incorporated into

the African Court of Justice. In July 2005, the AU Assembly then decided that the ACHP

should be operationalised despite the fact that the protocol establishing the African Court of

Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session of the

Executive Council of the African Union meeting in Khartoum, Sudan, on 22 January 2006,

elected the first judges of the African Court on Human and Peoples' Rights. The relationship

between the newly created Court and the Commission is yet to be determined.

As of 2013, 53 states have ratified the Charter. It has been ratified by every AU member state

with the exception of South Sudan. The African Charter on Human and People's Rights

followed the footsteps of the European and Inter-American systems by creating a regional

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human rights system for Africa. The Charter shares many features with other regional

instruments, but also has notable unique characteristics concerning the norms it recognizes

and also its supervisory mechanism.

The preamble commits to the elimination of Zionism, which it compares

with colonialism and apartheid, caused South Africa to qualify its 1996 accession with the

reservation that the Charter fall in line with the UN's resolutions "regarding the

characterization of Zionism.

The Banjul Charter departs, in very significant ways, from contemporary multilateral human

rights instruments. One of these is the dynamic entrenchment of the concept of "peoples" into

international human rights theory-a concept, however, that had long enjoyed some currency

in inter- national law As early as 1790, the decree of the French Constituent Assembly

referred to both the rights of man and the rights of peoples.8 More recently, the term has been

liberally invoked "in a number of international instruments on human rights, and General

Assembly resolutions, more particularly those dealing with self-determination and permanent

sovereignty over natural resources." For example, the Charter of the United Nations was

adopted in the name of "We the Peoples" and it recognized, in Article 1(2), the principle of

"self-determination of peoples." Common Article 1 of the 1966 International Human Rights

Covenants deals with the right of peoples to self-determination. Furthermore, and

specifically, in July 1976, a group of eminent individuals meeting in Algiers proposed to the

world the Universal Declaration on the Rights of Peoples (Algiers Declaration), in which a

number of peoples' rights were elaborated. 3 In spite of this concern for peoples and peoples'

rights, the term "people" has not been authoritatively defined in any of the instruments that

employ it. Moreover, it is not used to convey identical meanings in all these instruments. The

intention of this paper, therefore, is to attempt to work out the meaning of the term "people"

as used in the Banjul Charter, which the architects deliberately left undefined "so as not to

end up in difficult discussion. " It will be argued that its meaning is not consistent in the

Charter, as it is always determined by the context of the particular rights referred to.

However, before the various meanings of the term are discussed, it might be helpful briefly to

reflect upon the philosophy underlying the concept of "people" and the relationship between

peoples' and human rights in the Banjul Charter.

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AIMS AND OBJECTIVES

1. To do a detailed study of the provisions of the Banjul Charter.

2. To explore the various human rights enshrined under this charter for the people of Africa.

3. To critically analyse the features and articles of the Banjul Charter.

RESEARCH METHODOLOGY

Only doctrinal method of research was used.

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CREATION AND DEVELOPMENT OF THE

CHARTER

The African Charter on Human and Peoples‟ Rights was adopted in June 1981 and entered

into force in October 1986. Alternatively referred to as the Banjul Charter, it is an

international human rights instrument created to protect the human rights and basic freedoms

of people living on the African Continent .Although the need for the Charter has been

questioned in light of the already universal application of United Nations instruments for

upholding human rights, its creation follows in footsteps of other regional bodies in the

creation of their own unique regional human rights systems, notably the European

Convention on Human Rights (ECHR). Since its creation, the Charter has had significant

normative impact on the status of human rights on the African continent.

PASSING THE CHARTER

Although human rights have now been enshrined in legal instruments at all levels -

international, regional and national - when the proposal for a regional African instrument for

the protection of human rights was first articulated at the first Congress of African Jurists,

held in Lagos, Nigeria in 1961, it was not widely embraced. Whilst the Congress adopted a

declaration – referred to as the „Law of Lagos‟ – calling on African governments to adopt an

African convention on human rights with a court and a commission neither the colonised or

newly-decolonised states lacked the capacity to commit to such an ambitious undertaking.

Following the establishment of the Organisation of African Unity (OAU), the issue received

further consideration at the first United Nations Seminar on Human Rights in Developing

Countries1 in 1966. In 1979, the United Nations General Assembly (UNGA) adopted

Resolution 34/171 on regional arrangements for the promotion and protection of human

rights that inter alia requested the UN Secretary General to explore the possibility of holding

a seminar in developing regions to discuss the issue2

1 United Nations, Seminar on Human Rights in Developing Countries, Dakar, 8-22 February 1966, New York:

United Nations, 1966.

2 A/RES/34/171 (1979).

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From November 28 to December 8, 1979, a conference of twenty African experts was

organised, presided over by late Judge Kéba M‟baye in Dakar, Senegal. In what proved to be

the document‟s overarching philosophy, President Senghor‟s opening address urged the

experts to use their imagination and draw inspiration from African traditions, keeping in mind

the values of civilisation and the real needs of African people, the right to development and

the duties of individuals3. The Committee prepared an initial draft of the Charter after about

10 days of deliberation.

A scheduled conference to adopt the draft Charter, due to be held in Ethiopia, could not take

place due to hostility from certain African governments towards regional human rights

protection in Africa. In the face of such hostility, and at the invitation of the OAU Secretary-

General, the President of Gambia convened two Ministerial conferences in Banjul, The

Gambia. In January 1981, at the second session of the Ministerial Conference in Banjul, a

draft text, composed of 68 articles4, was completed.

This draft text was submitted to the OAU Committee of Ministers during the 37th

OAU

session held in Nairobi, Kenya in June 1981. The ministers, unable to agree, suggested

changes - especially in relation to Article 45 and the power of the African Commission on

Human and Peoples‟ Rights5to intervene in the internal affairs of member states. However,

the document was submitted without amendments and adopted by the OAU Assembly on

June 27, 1981. After ratifications by the absolute majority of member states of the OAU, the

Charter came into force on October 21, 1986.

On the difficulties in passing the Charter, Ouguergouz notes that:

“According to Balanda, this desire to succeed could be ascribed to a specific event; and he

observed that, when the news came that the delegates from Upper Volta had been arrested

shortly after attending the Banjul meeting, held in the immediate aftermath of a change of

political regime in their country, the need not just to emphasise human rights but to focus on

3 See: Ouguergouz F., The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human

Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York, 2003, pp. 377-378, 4 “African Charter on Human and Peoples’ Rights”, OAU Ministerial Meeting on the Draft African Charter on

Human and Peoples’ Rights, Banjul (The Gambia), 7-19 January 1981, OAU DOC CAB/LEG/67/3/Rev. 5 5 Ouguergouz F., The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human

Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York, 2003, p. 47.

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their actual enjoyment appeared in a fresh light; the chief outcome of this was to speed up the

second Banjul meeting, which ended before the scheduled date.”6

There is nothing new about the proposition that the international human rights movement

reflects, to a large extent, the liberal, individualistic tradition of civil and political liberties as

developed in such countries as Great Britain, the United States and France. There is

something very new, on the other hand, in the present attempt by the Organisation of African

Unity to embody a list of collective or peoples' rights in a human rights convention that

provides for the enforcement of those rights.7 For some time now, the belief has been

expressed that the world must move beyond the standard Western-oriented civil and political

rights. Only now, however, with the drafting in 1981 of the Banjul Charter on Human and

Peoples' Rights, are serious steps being taken in that direction. It would appear that

remarkably little consideration has been given to the legal problems that might arise when

(and if) the peoples' rights provisions of the Banjul Charter come into force. The tendency

has been to assume that these peoples' rights are what one might call autonomous rights-i.e.

existing entirely on their own, separate and apart from the traditional civil and political rights.

Such may be the case conceptually, but in practice the position is likely to be very different.

For instance, it is difficult to conceive how the peoples' rights of the African Charter will be

able to form the bases of claims before the African Commission on Human and Peoples'

Rights.5 How will claimants before the Commission be expected to establish that a State has

interfered with, say, the right of all peoples to "their economic, social and cultural

development with due regard to their freedom and identity and in the equal enjoyment of the

common heritage of mankind" (Art.22(1) of the Banjul Charter)? Or with the right of all

peoples to "national and international peace and security" (Art.23(1) of the Charter)? Or with

the right of all peoples to "a generally satisfactory environment favourable to their

development" (Art.24)? It would appear much more likely that considerations of the rights of

collectivities or of peoples will emerge, in African human rights law, not entirely on their

own, but rather as aspects of problems involving either the more traditional civil liberties or

perhaps just ordinary litigation. The important legal issues of the future in African human

rights law-and, indeed, in the law of collective or peoples' rights generally-will not be such

matters as the meaning of, say, the right to development in the abstract, but rather (putting the

6 Ouguergouz F., The African Charter on Human and Peoples’ Rights. A Comprehensive Agenda for Human

Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York, 2003, p. 46. 7 Ian Brownlie, Basic Documents on Human Rights (2nd ed., 1981), p.118

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matter at its broadest) such questions as how far the traditional concepts of individually

oriented civil rights will have to be modified in order to "make room" (as it were) for the

collective rights. The important questions in the future about collective or peoples' rights,

then, will concern not necessarily the intrinsic meaning of these new rights, in the abstract, so

much as their relationship to the traditional body of human rights law.

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UNIQUE FEATURES OF THE AFRICAN CHARTER

It is logical to question the need for an African human rights constellation when United

Nations instruments have universal application. In 1981, when the African Charter was

adopted, the core international treaties on human rights (Universal Declaration of Human

Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and

International Covenant on Economic, Social and Cultural Rights (ICESCR)) were already in

place. Whilst some have argued that the priority for African States should have been to join a

universal regime and implement its measures effectively instead of starting a new one, there

are, however, four features of the African Charter that make it unique and necessary for the

continent.

i) Third generation rights

Firstly, the Charter enshrines „third generation‟ rights or „rights of solidarity‟ (see Art. 22

Right to Economic, Social and Cultural Development; Art. 23 Right to National and

International Security and Peace; and Art. 24 Right to a General Satisfactory Environment).

Traditional or “first generation” rights place the individual at the centre of discourse. In the

Charter, this focal point is expanded to cater for the collective rights of the community – the

word “peoples” functions as a legal entity with actionable rights, in accordance with Article

19.

Although the text of the Charter leaves the term “peoples‟ rights” open - possibly in

recognition of the diversity of the groups it could accommodate - the Commission has

developed jurisprudence on a case-by-case basis. It has determined whether groups affected

by human rights violations are entitled to any right as a people8, and it has already had the

opportunity to sanction their violation9

In other international instruments, especially in the resolutions of the United Nations General

Assembly, these types of „third generation‟ rights are rarely capable of being construed as

8 African Commission on Human and Peoples’ Rights, Communication 276/03 Centre for Minority Rights

Development (Kenya) and Minority Rights (on behalf of Endorois Welfare Council) / Kenya, November 2009. 9 African Commission on Human and Peoples’ Rights, Communication 155/96 Social and Economic Rights

Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, October 2001.

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legally binding10

. The status granted to these third generation rights in the African Charter is

unique.

The indivisibility of „third generation rights‟ was recognised in the case of SERAC v Nigeria,

para 68 which states that „clearly, collective rights, environmental rights, and economic and

social rights are essential elements of human rights in Africa. The African Commission will

apply any of the diverse rights contained in the Charter. It welcomes this opportunity to make

clear that there is no right in the African Charter that cannot be made effective‟11

ii) True indivisibility and interdependence of rights

Secondly, when one looks at the drafting context of the international bill of rights, it is quite

exceptional the way in which the African Charter juxtaposes previously compartmentalised

rights: on one hand, civil and political rights are brought together with economic, social and

cultural rights, and, on the other hand, individual and collective rights viewed in tandem.

The international bill of rights was originally intended to be one comprehensive document,

but the Cold War context brought about regional bloc voting - particularly between the West

and Communist states and three separate documents were created– the Universal Declaration

of Human Rights, the International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural Rights. The African Charter stays

true to the purported indivisibility and interdependence of all sets of human rights.

Accordingly, all rights are contained within the same instrument and whenever there is a

conflict between two or more rights, a balance is struck between them.

iii) Rights and duties together

Thirdly, the Charter is more specific about the implementation of rights by stating both the

rights and duties of the individual. Although most definitions of law commonly agree that

rights also entail duties, no human rights instrument elaborates on the side of duties. The

African Charter‟s approach is excellent in this respect. While the African Commission has

not had a chance to make any finding on the merits in relation to the duties, domestic courts

have. For instance, in the case of d’Almeida Gaétan and Hilaire before the Constitutional

10

See for instance: A/RES/39/11 Declaration on the Right of Peoples to Peace. 11

African Commission on Human and Peoples’ Rights, Communication 115/96 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights/Nigeria, October 2001.

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Court of Benin, it was found that two children have violated their duty vis-à-vis their parents

by physically abusing them.12

v) Specific emphases

Fourthly, the Charter provides a specific emphasis on development, decolonisation, and racial

discrimination. Although in recent times this has lost much of its urgency, there are still

instances where it should help in the protection of minority rights – notably in the right to

self-determination in the Western Sahara and Cabinda.

12

Republic of Bénin, Constitutional Court, Decision DCC 96-024, 26 April 1996 (in French only:http://www.cour-constitutionnelle-benin.org/doss_decisions/960424.pdf).

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RIGHTS AND DUTIES UNDER THE CHARTER

CIVIL AND POLITICAL RIGHTS

The Charter recognizes most of what are regarded universally accepted civil and political

rights. The civil and political rights recognised in the Charter include the right to freedom

from discrimination (Article 2 and 18(3)), equality (Article 3), life and personal integrity

(Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel,

inhuman or degrading treatment or punishment (Article 5), rights to due process concerning

arrest and detention (Article 6), the right to a fair trial (Article 7 and 25), freedom of

religion (Article 8),freedom of information and expression (Article 9), freedom of

association (Article 10), freedom to assembly (Article 11), freedom of movement (Article

12), freedom to political participation (Article 13), and the right to property (Article 14).

Some human rights scholars however consider the Charter's coverage of other civil and

political rights to be inadequate. For example, the right to privacy or a right against forced or

compulsory labour are not explicitly recognised. The provisions concerning fair trial and

political participation are considered incomplete by international standards.13

However, this is

subject to argument as for example Article 5 of the Charter states "Every individual shall

have the right to the respect of the dignity inherent in a human being and to the recognition of

this legal status. All forms of exploitation and degradation of man particularly slavery, slave

trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited"

also, Article 15 states "Every individual shall have the right to work under equitable and

satisfactory conditions, and shall receive equal pay for equal work" - which may be

understood to prohibit forced or compulsory labour, although this is not explicitly mentioned.

Similarly, the Charter does not explicitly recognise the right to vote as a means of political

participation, but Article 13 states "(1) Every citizen shall have the right to participate freely

in the government of his country, either directly or through freely chosen representatives in

accordance with the provisions of the law. (2) Every citizen shall have the right to equal

access to the public service of his country. (3) Every individual shall have the right of access

to public property and services in strict equality of all persons before the law."

13

Christof Heyns, the essentials of...Human Rights, 2005

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NONDISCRIMINATION

African Charter contains two articles dealing with this subject. Article 2 provides for the

"enjoyment of the rights and freedoms recognised and guaranteed in the . . . Charter" on a

non-discriminatory basis. It is analogous to Article 14 of the European Convention on Human

Rights. Article 3 of the Banjul Charter, on the other hand, provides for the general equality of

all persons before the law and for the entitlement of all persons to equal protection of the law.

The analogy here is to the Fourteenth Amendment of the United States Constitution and also

to Article 24 of the American Convention on Human Rights. These articles of the African

Charter appear unexceptionable enough, until one considers that in many African States, such

as the three with which the present discussion is concerned, there are entire systems of

customary law co-existing with the formal legal systems" of the type familiar in European

and American countries.14

In areas such as family law and succession, it is entirely reasonable

to suppose that customary rules will diverge from "official" ones. The question then arises: to

what extent is such divergence compatible with the general norm of non- discrimination? In

this connection, it might be recalled that the conclusion of the African Conference on the

Rule of Law of 1961 (a gathering of legal scholars in their private capacities) contained an

express provision on this point. It recommended that the customary law of the African

countries then just emerging into independence be administered by the ordinary courts,

although it did not recommend that the substance of that law be abolished.15

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The Charter also recognises certain economic, social and cultural rights, and overall the

Charter is considered to place considerable emphasis on these rights. The Charter

recognises right to work (Article 15), the right to health (Article 16), and the right to

education (Article 17). Through a decision by the African Commission on Human and

Peoples' Rights, SERAC v Nigeria (2001), the Charter is also understood to include a right to

housing and a right to food as “implicit” in the Charter, particularly in light of its provisions

on theright to life (Art. 4), right to health (Art. 16) and to development (Art. 22).

14

Schapera, "Contract in Tswana Law", in Ideas and Procedures in African Customary Law (Max Gluckman (Ed.), 1969), p.318 15

Para.4 of the Conclusions of Committee III of the African Conference on the Rule of Law, in International Commission of Jurists, African Conference on the Rule of Law, Lagos, Nigeria (1961), p.20; reprinted in Ian Brownlie, Basic Documents on Human Rights (2nd ed., 1981), p.431

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PEOPLES' RIGHTS AND GROUP RIGHTS

In addition to recognising the individual rights mentioned above the Charter also recognises

collective or group rights, or peoples' rights and third-generation human rights. As such the

Charter recognises group rights to a degree not matched by the European or Inter-American

regional human rights instruments. The Charter awards the family protection by the state

(Article 18), while "peoples" have the right to equality (Article 19), the right to self-

determination (Article 20), to freely dispose of their wealth and natural resources (Article

21), the right to development (Article 22), the right to peace and security (Article 23) and "a

generally satisfactory environment" (Article 24).

DUTIES UNDER THE CHARTER

The Charter not only awards rights to individuals and peoples, but also

includes duties incumbent upon them. These duties are contained in Article 29 and are as

follows:

The duty to preserve the harmonious development of the family.

To serve the national community by placing both physical and intellectual abilities at its

service.

Not to compromise the security of the State.

To preserve and strengthen social and national solidarity.

To preserve and strengthen national independence and the territorial integrity of one's

country and to contribute to its defence.

To work to the best of one's abilities and competence and to pay taxes in the interest of

society.

To preserve and strengthen positive African cultural values and in general to contribute to

the promotion of the moral well-being of society.

To contribute to the best of one's abilities to the promotion and achievement of African

unity.

ADDITIONAL INSTRUMENTS

African States have developed four other instruments to complement the substantive legal

framework of the African Charter. These instruments focus on specific groups of people and

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areas of life, which are deemed to be particularly vulnerable to human rights abuses. Rights

are articulated in more detail to offer additional protection.

(i) The African Charter on the Rights and Welfare of the Child, 199016

;

(ii) The Protocol on the Rights of Women in Africa, 2003;

(iii) The African Charter on Democracy, Elections and Governance, 2007;17

and

(iv) The African Union Convention for the Protection and Assistance of Internally Displaced

Persons in Africa, 2009.18

Another instrument, which also complements the African Charter, is the OAU Convention

Governing the Specific Aspects of Refugee Problems in Africa. However, it was adopted in

1969, before the African Charter.

These instruments substantiate the African Charter and offer alternative mechanisms for

enforcement.

16

See the text of the Charter on the website of the African Union:http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_Wlefare_of_the_Child_AddisAbaba_July1990.pdf. 17

See the text of the 2007 Charter on the website of the African Union:http://www.au.int/en/sites/default/files/AFRICAN_CHARTER_ON_DEMOCRACY_ELECTIONS_AND_GOVERNANCE.pdf. 18

ee the text of the 2009 Convention on the website of the African Union:http://www.au.int/en/sites/default/files/AFRICAN_UNION_CONVENTION_FOR_THE_PROTECTION_AND

_ASSISTANCE_OF_INTERNALLY_DISPLACED_PERSONS_IN_AFRICA_(KAMPALA_CONVENTION).pdf.

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ENFORCEMENT REGIME

The African Charter had initially only envisaged the existence of the African Commission to

operate in tandem with the domestic institutions of each State party. However, additional

organs were later set up to further enforcement capabilities- either through a specifically

designed instrument such as the African Court or through some of the additional instruments

mentioned above, such as the African Committee of Experts on the Rights and Welfare of the

Child.

i) African Commission on Human and Peoples’ Rights

The original organ, the African Commission on Human and Peoples‟ Rights19

was established

in 1989 and is composed of 11 members (Art. 31). It has a twofold mandate: promotion and

protection (Art. 30).

Promotion entails advocating human rights in Africa and ensuring that the instrument and its

provisions are well known. The Protective mandate is implemented through the reporting

regime and the communication practice.

a) Reporting

Under the reporting regime, each State party has the obligation to submit a report every two

years (Art. 62). However, the African Charter does not specify which organ must receive the

report or the precise mandate of the recipient organ.

During its 24th

Ordinary Session, the African Commission‟s suggestion that states submit

their reports to it for assessment and recommendation was approved by the AU Assembly20

.

In practice, the majority of the States submit their reports late and the African Commission

lacks any enforcement mechanisms to ensure any effective repercussions - except by naming

the states.

b) Communications

19

See the website of the African Commission: http://www.achpr.org/. 20

See African Commission on Human and Peoples’ Rights, Resolution on Recommendation on Periodic Reports, April 1988 available online (http://www.achpr.org/sessions/3rd/resolutions/3R/).

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Communications can emanate from states (Article 47) or from others present at Ordinary

Sessions (Article 55). The African Commission is empowered to hear these but cannot act

with any force unless it goes through the chief organ of the continental organisation, the

Assembly of the African Union.

While communications by states is part of classical international law, “communication other

than those of State Parties” in Article 55 is quite vague. The African Commission has adopted

a broad approach and has interpreted the article as referring to communications submitted by

organisations registered with it and individuals.

However, this approach is limited because any decision by the African Commission on a

communication will still be submitted to the Assembly. Decisions within the Assembly are

usually derived through a consensus and, in this case, it means that the respondent state

would have the right to oppose any authorisation for publication. Even after publication, the

African Commission still lacks mechanism to follow up and to ensure compliance.

ii) The African Court

This flaw has been corrected with the Protocol establishing the African Court on Human and

Peoples‟ Rights (African Court) adopted in 199821

and in force since January 2004. While the

African Commission is a quasi-judicial organ, the African Court is a fully-fledged court with

11 judges - the first bench was elected in January 2006 and sworn in a few months later.22

The African Court is mandated by the Protocol to determine cases brought before it by any

state party, the African Commission, any African intergovernmental organisation, but also

civil society organisations and individuals (Art. 5 of the 1998 Protocol).

In the case of civil society organisations and the individuals, and in contrast to the procedure

under the African Commission, the respondent state needs to make a declaration authorising

the application (Art. 34(6) of the 1998 Protocol)23

.

21

See the text of the Protocol on the website of the African Union:http://www.au.int/en/sites/default/files/PROTOCOL_AFRICAN_CHARTER_HUMAN_PEOPLES_RIGHTS_ESTABLISHMENT_AFRICAN_COURT_HUMAN_PEOPLES_RIGHTS_1.pdf. 22

See the website of the African Court on Human and Peoples’ Rights (http://www.african-court.org/). 23

http://www.au.int/en/sites/default/files/achpr.pdf.

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The Court is also mandated to provide advisory opinions upon the request of any member

state of the African Union, the African Union itself, any of its organs, or any African

organisation recognised by the African Union (Art. 4 of the 1998 Protocol).

iii) The African Court of Justice and Human Rights

At the time when the Protocol establishing the African Court entered into force in 2004, the

serving Chairperson of the African Union and President of the Federal Republic of Nigeria,

Olusegun Obasanjo, suggested that the Court should be merged with the AU‟s African Court

of Justice (ACJ) to cut costs. The ACJ was the main judicial organ of the African Union

dealing with interstate disputes. The two courts merged to create the African Court of Justice

and Human Rights in July 2008 in Sharm El-Sheikh, Egypt.24

The merged Court is composed

of 16 Judges assigned to two sections: general affairs and human rights.

This institutional judicial framework might face new challenges following plans to extend the

jurisdiction of the Court to include criminal matters. This development is directly related to

the criticism of the International Criminal Court – primarily for its focus on Africa and the

indictment of Omar Al Bashir. A draft protocol has been submitted to the Assembly of the

African Union but during its summit in July 2012, the Assembly postponed its adoption until

further information from the Commission is received25

.

The African Court of Human and Peoples’ Rights (ACHPR) was established by the

Protocol to the African Charter on Human and Peoples‟ Rights on the Establishment of an

African Court on Human and Peoples‟ Rights (the Court Protocol) which entered into force in

2004.

It is a regional court created to make judgments on African Union states' compliance with

the African Charter on Human and Peoples' Rights. It came into being on January 25, 2004

with the ratification by fifteen member states of the Protocol to the African Charter on

Human and Peoples‟ Rights Establishing the AfCHPR. As of April 2014, just 27 of the

African Union's 54 members have ratified and are parties to the Court. The AU discourages

prosecution of human rights abuses in the International Criminal Court, hoping that they

would be tried by the AfCHPR instead; but the AfCHPR has achieved very little.

24

Elias O., Introductory Note to the Protocol on the Statute of the African Court of Justice and Human Rights, 48 International Legal Materials 314 (2009), pp. 334-336 25

Assembly/AU/Dec. 427 (XIX) Decision on the Protocol on Amendments to the Protocol on the Statute of the

African Court of Justice and Human Rights

21

On January 22, 2006, the Eighth Ordinary Session of the Executive Council of the African

Union elected the first eleven Judges of the African Court on Human and Peoples' Rights.

Judges are normally elected for six-year terms and can be re-elected once. The President and

Vice-President are elected to two-year terms and can be re-elected once.

The Court had its First Ordinary Session from July 2–5, 2006 in Banjul, The Gambia.

Member states of the protocol establishing the Court, as well as the African Commission and

African inter-governmental organisations, may bring before the Court applications against

members states of the protocol.

Individuals and NGOs with observer status before the African Commission on Human and

Peoples‟ Rights, however, can file applications only against members states accepting that

specific option (as of 2013, Burkina Faso, Ghana, Malawi, Mali, Tanzania and Rwanda).

iv) African Committee of Experts on the Rights and Welfare of the Child

The African Commission is further supplemented by an African Committee of Experts on the

Rights and Welfare of the Child (ACERWC).26

In July 1990, the OAU adopted the African

Charter on the Rights and Welfare of the Child, which establishes this Committee (Art. 32 of

the 1990 African Charter). This Charter entered into force on 29 November 1999 and the first

11 members of the Committee were elected in July 2001. Forty-six States have already

ratified the Charter. The mandate of the Committee of Experts is to monitor the

implementation of the Charter, both through promotion and protection, with the possibility

for civil society organisations and individuals to submit individual applications. Until now,

the Committee has issued only one decision where it found that Kenya violated various rights

established in the 1990 Charter27

.

All these institutions support the African Commission to ensure protection of human rights in

Africa.

26

See the website of the Committee: http://www.acerwc.org/. 27

African Committee of Experts on the Rights and Welfare of the Child (ACERWC), Decision on the Communication submitted by the Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) against the Government of Kenya, 22 March 2011 (http://www.acerwc.org/wp-content/uploads/2011/09/002-09-IHRDA-OSJI-Nubian-children-v-Kenya-Eng.pdf).

22

CONCLUSION

The task of building an effective international law of human rights for Africa-including a law

of collective or peoples' rights-is likely to require the skills of the sociologist and the

anthropologist as well as of the lawyer. The reason, in brief, is that it is simply naive to

suppose that a system of international human rights law can or will descend upon Africa from

above, as it were, like some sort of juridical Pentacost. The central thesis of this discussion

has been that, on the contrary, it is essential to understand something of the pre-existing legal

and socio-economic bases upon which the law of the African Charter will build. The

sweeping generalisations which characterise such current human rights initiatives as the

"right to development" are all too likely to prove irrelevant to the living law of Africa (or of

anywhere else).

It is an unfortunate weakness of the Banjul Charter that its provisions on peoples' rights are

so vague and sweeping as to be hardly more than mere rhetoric. They are more likely to

confuse lawyers than to enlighten them. More specifically, they are likely to distract legal

scholars from the hard labours which await them in this area. When (and if) the African

Charter enters into force, it will-or at least should-become necessary to make difficult

decisions about the social, economic and legal conditions prevailing in the various States

parties, in order to decide what modifications will have to be made to the traditional body of

individualistically oriented human rights norms. It is from the political, economic, social and

legal thickets of the individual African States that a meaningful law of collective or peoples'

rights will emerge (if at all), rather than from the lofty pronouncements of such rights in the

abstract. It is hoped that this study may constitute a small advance survey of these as yet

unexplored thickets

All 53 Member States of The African Union have ratified the African Charter on Human and

Peoples‟ Rights. This makes it the most important human rights instrument on the continent.

Only Morocco, which withdrew from the continental organisation in 1983, is not a member

state. While its substance is determined by Member States, like every other international law

instrument, its life and application does not depend exclusively on the States. It is, therefore,

the duty of every African to ensure compliance, using as needed the various enforcement

mechanisms in place. If these conditions are fulfilled, the rule of law and the protection of

human rights on the continent will improve.

23

BIBLIOGRAPHY

1. Hassan B. Jallow , The Law of the African (Banjul) Charter on Human and People's

Rights, Trafford Publishing, 2007.

2. A. M. Fanana, Measures of safeguards under Banjul Charter on Human and Peoples‟

Rights- A Comparative Study, Institute of Soutern African Studies, Lesotho, 2002.

3. Charles Mwalimu, The Golden Book: Philosophy of Law for Africa Creating the National

State of Africa, Peter Yang Publishing Inc., New York,2010.

4. Chris Maina Peter, Human Rights In Africa, 10th

Volume, Greenwood Press, Michigan,

1990.

WEBSITES

http://www.au.int/en/sites/default/files/Welfare%20of%20the%20Child_0.pdf.

http://www.african-court.org/).

http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_

Wlefare_of_the_Child_AddisAbaba_July1990

http://www.achpr.org/states/reporting-procedure/.