The African Human The African Human Rights SystemRights SystemCecilia M. BaillietCecilia M. Bailliet

African Union African Union Constitutive Act: Constitutive Act: Preamble Preamble To promote and protect Human To promote and protect Human

and People’s Rights, and People’s Rights, Consolidate Democratic Consolidate Democratic

Institutions and Culture, Institutions and Culture, Ensure Good governance and the Ensure Good governance and the

Rule of Law Rule of Law

African Union African Union Constitutive Act: Constitutive Act: ObjectivesObjectives Promote Democratic Principles and Promote Democratic Principles and

Institutions, Popular Participation Institutions, Popular Participation and Good Governanceand Good Governance

Promote and Protect Human and Promote and Protect Human and People’s Rights in accordance with People’s Rights in accordance with the African Charter on Human and the African Charter on Human and People’s Rights and other relevant People’s Rights and other relevant instrumentsinstruments

African Union African Union Constitutive Act: Constitutive Act: ObjectivesObjectives Promote Sustainable Promote Sustainable

Development at the Economic, Development at the Economic, Social and Cultural Levels as well Social and Cultural Levels as well as the integration of African as the integration of African EconomiesEconomies

African Union African Union Constitutive Act: Constitutive Act: PrinciplesPrinciples Sovereign Equality & Sovereign Equality &

Interdependence among Member Interdependence among Member States of the UnionStates of the Union

Respect of Borders Existing on Respect of Borders Existing on achievement of independenceachievement of independence

Participation of the African Peoples Participation of the African Peoples in the Activities of the Unionin the Activities of the Union

Establishment of a Common Defence Establishment of a Common Defence Policy for the African ContinentPolicy for the African Continent

African Union African Union Constitutive Act: Constitutive Act: PrinciplesPrinciples Peaceful Resolution of Conflicts among Peaceful Resolution of Conflicts among

Member States of the Union through Member States of the Union through such appropriate means as may be such appropriate means as may be decided upon by the Assemblydecided upon by the Assembly

Prohibition of the use of force or threat Prohibition of the use of force or threat to use force among Member States of to use force among Member States of the Unionthe Union

Non-interference in the Internal Affairs Non-interference in the Internal Affairs of Anotherof Another

African Union African Union Constitutive Act: Constitutive Act: PrinciplesPrinciples The Right of the Union to intervene in The Right of the Union to intervene in

a Member State pursuant to a decision a Member State pursuant to a decision of the Assembly in respect of grave of the Assembly in respect of grave circumstances, namely: war crimes, circumstances, namely: war crimes, genocide and crimes against humanitygenocide and crimes against humanity

Peaceful co-existance of states and Peaceful co-existance of states and right to live in peace and securityright to live in peace and security

African Union African Union Constitutive Act Constitutive Act PrinciplesPrinciples The Right of Member States to The Right of Member States to

Request Intervention from the Request Intervention from the Union in order to restore peace Union in order to restore peace and securityand security

Promotion of gender equalityPromotion of gender equality Respect for democratic principles, Respect for democratic principles,

human rights, the rule of law and human rights, the rule of law and good governancegood governance

African Union African Union Constitutive Act: Constitutive Act: PrinciplesPrinciples Promotion of Social Justice to ensure Promotion of Social Justice to ensure

Balanced Economic DevelopmentBalanced Economic Development Respect for the Sanctity of Human Life, Respect for the Sanctity of Human Life,

Condemnation and Rejection of Impunity Condemnation and Rejection of Impunity and Political Assassination, Acts of and Political Assassination, Acts of Terrorism and Subversive ActivitiesTerrorism and Subversive Activities

Condemnation and Rejection of Condemnation and Rejection of Unconstitutional Changes of Unconstitutional Changes of Governments (Democracy Clause)Governments (Democracy Clause)

African Union African Union Constitutive Act: Constitutive Act: SuspensionSuspension Governments which shall come to Governments which shall come to

power through unconstitutional power through unconstitutional means shall not be allowed to means shall not be allowed to participate in the activities of the participate in the activities of the Union.Union.

African Charter on African Charter on Human Rights (Banjul Human Rights (Banjul Charter)Charter) Look at the African Charter: How Look at the African Charter: How

are rights categorized?are rights categorized? Civil & Political Rights, Social & Civil & Political Rights, Social &

Economic Rights.Economic Rights. Second and Third generation Second and Third generation

rights are legally enforceablerights are legally enforceable

African CommissionAfrican Commission Collective Rights, Environmental Collective Rights, Environmental

Rights, and Economic and Social Rights, and Economic and Social Rights are essential elements of Rights are essential elements of human rights in Africahuman rights in Africa

States have a duty to respect, States have a duty to respect, protect, fulfill and promote all protect, fulfill and promote all rightsrights

Concept of ”People”Concept of ”People” 1) Entire People of one country1) Entire People of one country 2) Group of People within a State 2) Group of People within a State

who see themselves as distinctwho see themselves as distinct 3) Indigenous People3) Indigenous People

Clawback Clauses in the Clawback Clauses in the African Charter on African Charter on Human RightsHuman Rights Article 10 Every individual shall have Article 10 Every individual shall have

the right to free association provided the right to free association provided that he abides by the law (right is that he abides by the law (right is subject to the dictates of municipal law)subject to the dictates of municipal law)

African Commission states that African Commission states that international human rights standards international human rights standards must always prevail over contradictory must always prevail over contradictory national lawnational law

No derogation clauseNo derogation clause

African Charter on African Charter on Human Rights, Human Rights, Limitations on RightsLimitations on Rights Article 27 (2) The Rights of the Article 27 (2) The Rights of the

Charter shall be exercised with Charter shall be exercised with due regard to the rights of others, due regard to the rights of others, collective security, morality and collective security, morality and common interest.common interest.

Weighing Legitmacy of Weighing Legitmacy of Limitation on RightLimitation on Right Is state interest legitimate?Is state interest legitimate? Is the limitation strictly Is the limitation strictly

proportionate?proportionate? Is the limitation absolutely Is the limitation absolutely

necessary to obtain advantage?necessary to obtain advantage? The limitation must never render The limitation must never render

the right illusorythe right illusory

African Charter on African Charter on Human RightsHuman Rights Assigns duties to individuals vis-a-Assigns duties to individuals vis-a-

vis the state, other groups, and vis the state, other groups, and individualsindividuals

Is it a statist instrument which Is it a statist instrument which sacrificies the interest of sacrificies the interest of individuals?individuals?

Other InstrumentsOther Instruments African Charter on the Rights and African Charter on the Rights and

Welfare of the Child (rights and duties Welfare of the Child (rights and duties of child vis-a-vis family, community of child vis-a-vis family, community and State) Supervisory Body: African and State) Supervisory Body: African Committee of Experts on the Rights Committee of Experts on the Rights and Welfare of the Child can receive and Welfare of the Child can receive communicationscommunications

Convention Governing Specific Aspects Convention Governing Specific Aspects of Refugee Problems in Africa 1974of Refugee Problems in Africa 1974

AU Convention- IDPsAU Convention- IDPs Refrain from, prohibit and prevent arbitrary displacement of populations; Refrain from, prohibit and prevent arbitrary displacement of populations;    Prevent political, social, cultural and economic exclusion and marginalisation, Prevent political, social, cultural and economic exclusion and marginalisation,

that are likely to cause displacement of populations or persons by virtue of their that are likely to cause displacement of populations or persons by virtue of their social identity, religion or political opinion;social identity, religion or political opinion;

   Respect and ensure respect for the principles of humanity and human dignity of Respect and ensure respect for the principles of humanity and human dignity of

internally displaced persons;internally displaced persons;    Respect and ensure respect and protection of the human rights of internally Respect and ensure respect and protection of the human rights of internally

displaced persons, including humane treatment, non-discrimination, equality displaced persons, including humane treatment, non-discrimination, equality and equal protection of law;and equal protection of law;

   Respect and ensure respect for international humanitarian law regarding the Respect and ensure respect for international humanitarian law regarding the

protection of internally displaced persons,;protection of internally displaced persons,;   

AU Convention on IDPsAU Convention on IDPs Respect and ensure respect for the humanitarian and civilian Respect and ensure respect for the humanitarian and civilian

character of the protection of and assistance to internally displaced character of the protection of and assistance to internally displaced persons, including ensuring that such persons do not engage in persons, including ensuring that such persons do not engage in subversive activities;subversive activities;

  Ensure individual responsibility for acts of arbitrary displacement, in Ensure individual responsibility for acts of arbitrary displacement, in accordance with applicable domestic and international criminal law; accordance with applicable domestic and international criminal law;

Ensure the accountability of non-State actors concerned, including Ensure the accountability of non-State actors concerned, including multinational companies and private military or security companies, multinational companies and private military or security companies, for acts of arbitrary displacement or complicity in such acts;for acts of arbitrary displacement or complicity in such acts;

   Ensure the accountability of non-State actors involved in the Ensure the accountability of non-State actors involved in the exploration and exploitation of economic and natural resources exploration and exploitation of economic and natural resources leading to displacement;leading to displacement;

   Ensure assistance to internally displaced persons by meeting Ensure assistance to internally displaced persons by meeting their basic needs as well as allowing and facilitating rapid and their basic needs as well as allowing and facilitating rapid and unimpeded access by humanitarian organizations and personnel;unimpeded access by humanitarian organizations and personnel;

  Promote self-reliance and sustainable livelihoods amongst internally Promote self-reliance and sustainable livelihoods amongst internally displaced persons, provided that such measures shall not be used as displaced persons, provided that such measures shall not be used as a basis for neglecting the protection of and assistance to internally a basis for neglecting the protection of and assistance to internally displaced persons, without prejudice to other means of assistance;displaced persons, without prejudice to other means of assistance;

  

Protocol on the Rights Protocol on the Rights of Women-of Women- No specific supervisory body. No specific supervisory body.

African Commission may receive African Commission may receive State reports and African Court State reports and African Court will be able to apply Protocolwill be able to apply Protocol

Look at Art 11 Protection of Look at Art 11 Protection of Women in Armed ConflictWomen in Armed Conflict

Arts 20 & 21 Widow’s RightsArts 20 & 21 Widow’s Rights

African Commission in African Commission in Banjul, GambiaBanjul, Gambia Public and Private SessionPublic and Private Session NGO observers includedNGO observers included Lack of resources and translation Lack of resources and translation

facilitiesfacilities Quasi Judicial Function: Quasi Judicial Function:

– Inter-State ComplaintsInter-State Complaints– Individual Complaints (Also Third Individual Complaints (Also Third

Parties and NGOs)Parties and NGOs)

African Commission on African Commission on Human RightsHuman Rights Non-Confrontational Mechanism for Non-Confrontational Mechanism for

Human RightsHuman Rights Seeks Amicable Resolution and Seeks Amicable Resolution and

Remedies for VictimRemedies for Victim Lack of transparancy and timidityLack of transparancy and timidity Issues provisional measures (but Issues provisional measures (but

may result in withdrawal of may result in withdrawal of communication)communication)

Non-binding decisionsNon-binding decisions

African Charter on African Charter on Human RightsHuman Rights Article 1 States have obligation to Article 1 States have obligation to

give effect to the rights, freedoms give effect to the rights, freedoms and duties in the Chartersand duties in the Charters

Article 2 Non-DiscriminationArticle 2 Non-Discrimination Article 62 States submit report Article 62 States submit report

every 2 years on legislative and every 2 years on legislative and other measures taken to give effect other measures taken to give effect to the African Charter (Delays)to the African Charter (Delays)

Serious & Massive Serious & Massive Violations of Human Violations of Human RightsRights Article 58 of the African Charter Article 58 of the African Charter

on Human Rights, Case on Human Rights, Case concerning serious and massive concerning serious and massive violations should go to OAU violations should go to OAU Assembly, but now African Assembly, but now African Commission reviews all claims Commission reviews all claims and calls for remedy and follow and calls for remedy and follow up report by the stateup report by the state

AdmissibilityAdmissibility Ratione MaterieRatione Materie Ratione Personae (Any individual or Ratione Personae (Any individual or

NGO, even from non-member country NGO, even from non-member country can file communication, does not have can file communication, does not have to be the victim)to be the victim)

Ratione TemporisRatione Temporis Ratione LociRatione Loci Communication must not have already Communication must not have already

been settled in terms of international been settled in terms of international law (UN HRC)law (UN HRC)

Admissibility: Admissibility: Exhaustion of Exhaustion of Domestic RemediesDomestic Remedies Unless excessive delay or Unless excessive delay or

ineffectiveness of systemineffectiveness of system Ousting of judiciary by Ousting of judiciary by

military/executive decreemilitary/executive decree Domestic Remedy not possible Domestic Remedy not possible

because victim has dies or is in because victim has dies or is in exile abroad (illogical for him to exile abroad (illogical for him to return)return)

Indigence of complainantIndigence of complainant

Thematic Reporters & Thematic Reporters & Working GroupWorking Group Rights of Women, Rights of Women, Prisons & Detention, Prisons & Detention, Human Rights DefendersHuman Rights Defenders Freedom of ExpressionFreedom of Expression Refugees & IDPsRefugees & IDPs Working Group on Indigenous Working Group on Indigenous

PeoplePeople

Other African Union Other African Union Organs that may address Organs that may address Human RightsHuman Rights Court of JusticeCourt of Justice Pan African ParliamentPan African Parliament Peace & Security CouncilPeace & Security Council

African Court of Human African Court of Human Rights came into being Rights came into being 20062006 Interpret African Charter on Human Interpret African Charter on Human

Rights, Protocol and other human Rights, Protocol and other human rights instruments ratified by the rights instruments ratified by the States PartiesStates Parties

Contentious, Advisory, and Contentious, Advisory, and Conciliatory JurisdictionConciliatory Jurisdiction

Art. 4 Protocol- Any AU Member State, Art. 4 Protocol- Any AU Member State, AU organ, or NGO recognized by AU AU organ, or NGO recognized by AU may request an advisory opinionmay request an advisory opinion

African Court of African Court of Human RightsHuman Rights Art. 34 of Protocol establishing Court, Art. 34 of Protocol establishing Court,

State must make declaration to give State must make declaration to give individuals standing before the Court individuals standing before the Court (individual or NGO may file directly (individual or NGO may file directly with the Court and bypass with the Court and bypass Commission- Only Burkina Faso) Most Commission- Only Burkina Faso) Most cases will be filed with the cases will be filed with the Commission which is to refer case to Commission which is to refer case to the Courtthe Court

African Court of Human African Court of Human Rights: Lodging of Rights: Lodging of ComplaintComplaint African Commission of Human Rights: African Commission of Human Rights:

Unconditional right of access to the Unconditional right of access to the CourtCourt

State Party which has lodged a State Party which has lodged a complaint to the Commissioncomplaint to the Commission

State Party against which a complaint State Party against which a complaint has been lodged in the Commissionhas been lodged in the Commission

State Party whose citizen is a victim of State Party whose citizen is a victim of human rights violationhuman rights violation

African Court of African Court of Human RightsHuman Rights Court may enable individuals and Court may enable individuals and

NGOs withe observer status before NGOs withe observer status before the Commission to submit cases the Commission to submit cases directly to the Courtdirectly to the Court

Court may give Advisory Opinions at Court may give Advisory Opinions at the request of the AU or AU organthe request of the AU or AU organ

It may not review an issue if it is still It may not review an issue if it is still being examined by the Commissionbeing examined by the Commission