Chapter 2. The African system of protection of Human Rights

The African continent consists, mostly, of States stemming from the decolonisation around the years 1960-1970. After their access to the international sovereignty, their priorities concerned:-the national reconstruction, -the economic development and -the national unity. Nevertheless, these States joined the movement of regional organisations ebsitehich begun in Europe and in America and encouraged by the Charter of the United Nations.

Section 1. The Organization of African Unity (OAU)

. May, 1963 in Addis Ababa, birth of the Organization of African Unity (OAU).

The OAU was replaced, since 2002, by the African Union (AU). It is a union consisting of 54 states.

1981 (June 27th) African Charter on Human and peoples Rights, the Charter of the OAU was adopted by 32 independent African States,in Nairobi, Kenya, also known as Banjul Charter

1. The Organization of African Unity (OAU) Charter

The Charter came into force on October 21st, 1986 and was ratified by almost all the African countries (53 States), with the exception of Morocco[1]. [1] Morocco withdrew from the African organization in 1984 to protest against the admission within it of the Sahrawi Arabic Republic, which competes it for the sovereignty the Western Sahara, the former Spanish colony under Moroccan control since 1975.

African Charter of OAU is centred on: -the right of peoples to self-determination, -fight against colonialism and racial discrimination.

African Charter on Human and Peoples' Rightsis inspired by European, American and universal models, in the sense that it makes a wide place to the classic rights and liberties, such as:the equality in front of the law, the dignity, the right for the safety and for the fundamental jurisdictional guarantees, freedom of conscience, association and religion.

But the African Charter has some specific characteristics whose inspiration derived from: -Africas colonial history, -philosophy of law and -conception of man.

The focus on African traditions is mentioned from the preamble of the African Charter on Human and Peoples' Rights

Read preamble on the next slide

AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS PREAMBLEThe African States members of the Organisation of African Unity, parties to the present Convention entitled African Charter on Human and Peoples RightsRecallingDecision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of a preliminary draft on an African Charter on Human and Peoples Rights, providing inter alia for the establishment of bodies to promote and protect human and peoples rights;Consideringthe Charter of the Organisation of African Unity, which stipulates that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples;

AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS PREAMBLE (continuing)() Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights; Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples' rights;Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings which justifies their national and international protection and on the other hand that the reality and respect of peoples rights should necessarily guarantee human rights;

AFRICAN (BANJUL) CHARTER ON HUMAN AND PEOPLES' RIGHTS Preamble continuingConsidering that the enjoyment of rights and freedoms also implies the performance ofduties on the part of everyone; Convinced that it is henceforth essential to pay a particularattention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights ia a guarantee for the enjoyment of civil and political rights;Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressivemilitary bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex. language, religion or political opinions;

AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS PREAMBLE (continuing)Reaffirming their adherence to the principles of human and peoples' rights and freedoms contained in the declarations, conventions and other instrument adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations;Firmly convinced of their duty to promote and protect human and people' rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa

African Charter on Human and Peoples' Rights has 4 main characteristics:-Firstly, the African Charter enshrines rights of solidarity, so-called third generation rights. It is the first international instrument to provide such rights, for example the right to the economic, social and cultural development, the right to peace and security, and the right to a general satisfactory environment.

Secondly, it designates people as its unique owner. The Charter recognizes the right of peoples to existence and self-determination, a feature due to the yoke of colonialism still marked on the continent. Thus, Article 19 of the African Charter proclaims the equality of peoples and states: All peoples shall be equal; they shall enjoy the same respect and shall have the same rights.Nothing shall justify the domination of a people by another.

Article 19 of the African Charter on Human and Peoples' RightsAll peoples shall be equal; they shall enjoy the same respect and shall have the same rights.Nothing shall justify the domination of a people by another.

-Thirdly, the African Charter, operating a dialectic between rights and duties:it is stating duties of individuals to others persons and to the community; The concept of duties of the individual, based on the principle of solidarity between the individual and society, is coherent with the idea that African rights and duties are inseparable. To date, only the Universal Declaration of Human Rights of 10 December 1948 and the American Declaration of the Rights and Duties of Man of May 2, 1948 are briefly alluded in two of their provisions;Read article 29 of the Charter (read next slide)

ARTICLE 29The individual shall also have the duty:1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.2. To serve his national community by placing his physical and intellectual abilities at its service;3. Not to compromise the security of the State whose national or resident he is;4. To preserve and strengthen social and national solidarity, particularly when the latter is strengthened;5 To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to his defence in accordance with the law;6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

Fourthly, the African Charter incorporated into a single document two different categories of individual rights, * civil and political rights on the one hand, such as the right to life and to physical and moral integrity * economic, social and cultural rights such as the right to work under equitable and satisfactory conditions, and the right to health, what is rare in a single international instrument, even if it it is the case of the EU Charter and the American Declaration of rights and duties.

It is an attempt to protect HR on the continent and to define these rights taking mindful consideration of the African socio-economic situation. But careful examination of the Charter indicates certain limitations in the realisation of its ideals.

The African Union adopted in 2003, a Protocol to the African Charter of human and peoples rights, concerning women rights in Africa.

Between 1981,when member states of the Organisation of Africa Unity (now African Union) adopted the African Charter on Human and Peoples Rights, and 2011, Africa has experienced scores of human rights catastrophes of extreme proportions: the scourge of poverty, the HIV/AIDS pandemic, the 1994 Rwandan genocide, the Darfur crisis, and civil wars in Somalia, Sierra Leone, Cte dIvoire and Liberia. Is there then any reason to celebrate the thirtieth anniversary of the Charter?Mali and Central African Republic can be add to that list

Some of the African Charter on Human and Peoples Rights provisions are quite controversial according to the doctrine. They are defined as claw-back clauses. They constitute a form of a permit for the already unwilling State toengage in breach of the Charters obligations using the reasons of public utility ornational security, etc.

2. Bodies of the AU

A. The African Commission of Human and peoples rights

African Commission on Human and Peoples RightsThe African Union includes a Commission of Human and peoples rights, since 1987, which contains 11 members, elected by the Conference of heads of state and governments. This Commission is loaded with a double mission: -the promotion and -the protection of the rights and the liberties proclaimed.

The African Charter on Human and Peoples Rights requires submitters to exhaust of national judicial remedies before initiating proceedings before the African Commission, "unless it is obvious [...] that such remedies are unduly prolonged" (It is the requirement of admissibility most controversial and most extensive of the Charter African.) The Commission recognized that the provision implies and assumes the availability, effectiveness and adequacy of national judicial proceedings. If domestic remedies extend to abnormally, are unavailable, ineffective or insufficient, the rule of exhaustion does not preclude the examination of the case.

Legal instruments-AU Convention Governing specific Aspects of refugee Problem in Africa 1969

-African Charter on Human and Peoples rights 1981-African Charter on the rights and welfare of the child 1990

-Protocol to the African Charter on the estblishment of the African Court Human and Peoples rights 1998

Constitutve act of the AU 200- Protocol to the African Charter on Human and Peoples rights on the rights of women 2003African Cherter on democrcy, elections and governance 2011.

-19 States have ratified all instruments-26 have still one or two instruments to ratified-9 have still more than 3 instruments to ratify

B. The African Court of Human and peoples rights

Like the American and European regional systems, an African Court of human and peoples rights was established by a Protocol of June 9th, 1998, adopted in Ouagadougou. This Court has a contentious and consultative competence, to guarantee better the effectiveness of the rights, the liberties and the duties.

But the 15 mandatory ratifications for the African Court to become effective, were difficult to obtain: 1998-2004!

African Court on Human and Peoples Rights 1998 has its permanent seat in Arusha (the United Republic of Tanzania).

African Court on Human and Peoples RightsThe mandate of the Court is to complement and reinforce the functions of the African Commission on Human and Peoples Rights (the African Commission often referred to as the Banjul Commission), which is a quasi-judicial body charged with monitoring the implementation of the Charter.

African Court on Human and Peoples RightsThe Protocol suggests that the African Human Rights Court will make the promotion and the protection of human rights within the regional system more effective. However the mere addition of a court, although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the African human rights system since its inception.

African Court on Human and Peoples Rights first case law( CAfDHP), in December 15th, 2009 (request N 001/2008), Michelot Yogogombaye c / Republic of Senegal

Michelot Yogogombaye c / Republic of Senegal According to the applicant, Senegal adopted a law which modifies its Constitution and authorizes the retroactivity of the penal laws to judge for acts of torture Hissein Habr, former president of the Chad today taken refuge in Senegal. According to him, this law would violate the principle of non-retroactivity of the penal law dedicated by the African Charter (article 7 2) and would have been voted only for " political purposes " and " pecuniary considerations ". The Court rejects his request by basing itself on the provisions of the Protocol creating the African Court of human rights and peoples. This text, in its article 34 ( 6 ) combined with article 5 ( 3 ), plans the possibility for the Court to examine individual requests, while conditioning this possibility to the acceptance of State part concerned. The Republic of Senegal not having made a declaration of recognition of competence of the Court to know individual requests, the African Court of human rights and peoples declares itself incompetent.

African Court

Status of cases:-32 applications-20 finalised-transfered to the Commission : 4-Pending: 8Request for advisory opinion:Received : 8Finalised: 3Withdraw: 1Application for review:received: 1Pending: 1

Section 2. The weaknesses of the African protection of HR

The African Union and its Commission presents certain lacks regarding the guarantee of the rights, in particular from the point of view of -the duration of examination of the recourses which is very long. This one can vary between two and eight years. To procedural problems, is added the -lack of human, financial and material resources, because of an insufficient budget. Indeed, generally, the lack of resources of the African States has for consequence their default of participation in the functioning of the African Union, which suffers from an obvious lack of means to act.

Furthermore, the Commission depends in many respects on the Conference of the heads of state and the governments, the supreme organ of the African Union with important privileges by the African CharterFor example, regarding election of the members of the Commission and the judges of the African Court, as well as the follow-up of the reports of the Commission, this Conference has full competence (plein pouvoirs). It so limits the margin of action of the Commission, what decreases its guarantor's role of the rights and duties of the man.Besides, the African Commission of human rights has neither real privileges nor real decision-making power. It can only investigate into the facts and try to find a friendly-agreement between the States. The African system works badly because the Commission was never seized by States and individuals seizures have never resulted in a judgment and in a condemn of a State.

Since 1998, an African Court of human rights and peoples was create to remedy the lacks of the Commission.But, there is a risk of competition between the Commission and the Court in the allocation of the consultative competence, what can end in divergent interpretations.

Besides, in contentious subject, for the admissibility of:- an individual request or -that emanating from a NGO endowed with observer's status, it is necessary, in parallel that the State in cause has to accept the competence of the Court. Only States have accepted it: Burkina Faso and Mali, malawi., Ghana Tanzania

The significant number of armed conflicts on the whole African territory is an additional difficulty in the functioning of the African Union. In fact, African Union can intervene in these conflicts, but the remains little effective, even absent. It is a paradox, because in view of its objectives, the humanitarian protection and the rights of the refugees are a part of fundamental rights of every individual.

In conclusion, one of the open question about the African system is: has Africa real different values or have the African leaders a tendency to sacrifice individual liberties in order to safeguard national independence?