African Human Rights System

Author: Adamantia Rachovitsa

Required knowledge: sources of international law; indigenous peoples

Learning objectives: understand the basic substantive and institutional features of the African human rights system

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A. Introduction

Human rights were part of the agenda of the Pan-African Congress in the anti-colonial struggle prior to the independence of the African states. However, the Organisation of African Unity (OAU), established in 1963, made no reference to human rights; it emphasised decolonisation, state sovereignty and development instead. The language of human rights was (re)introduced with the negotiations for the African Charter on Human and Peoples' Rights (ACHPR or Banjul Charter), adopted in 1981. Subsequently, the Constitutive Act of the African Union (AU), which succeeded the OAU in 2002, placed human rights values among the AU's own objectives and principles.

B. The Substantive Guarantees of Human and Peoples' Rights

I. The African Charter on Human and Peoples' Rights

The ACHPR is not only the lighthouse of the African system of human and peoples' rights protection (with fifty-four state parties), but also a human rights treaty with many distinctive, interesting features that distinguish it from other regional human rights systems.

The ACHPR is the only regional human rights treaty that accords equal weight to the different generations of human rights. The text provides for most civil and political rights and a few economic, social and cultural rights, such as the right to work, the right to health and the right to education, as well as peoples' rights (also known as solidarity rights). Peoples' rights hold a prominent place and include the right to self-determination, the right to dispose freely of natural resources, the right to development and the right to a healthy environment (Articles 20-24). Another unique characteristic of the ACHPR is its emphasis on the duties of the individual towards the community and the state (Articles 27-29). An example of such a duty is the duty of the individual to preserve and strengthen positive African values (Article 29(7)). Finally, in contrast to other human rights instruments, the ACHPR does not contain a derogation clause, which means that limitation on ACHPR rights cannot be justified by emergencies.

At the same time, the ACHPR features certain notable shortcomings most of which have been addressed by the African Commission on Human and Peoples' Rights (ACmHPR) and the African Court on Human and Peoples' Rights (ACtHPR). First, the text omits certain rights, (e.g. the right to privacy). Second, the ACHPR is less detailed (compared to other human rights treaties) in setting out essential safeguards with regard to, for instance, the right to a fair trial. The ACtHPR's case-law has incorporated the guarantees of the right to a fair trial under international human rights law into the protective scope of Article 7. Third, the ACHPR is silent on the requirements for a restriction on a human right to be lawful. In response to this, the ACtHPR pronounced, in its very first judgment on the merits in 2013, that the restrictions imposed on human rights must conform to the three-part test under international human rights law: restrictions must be prescribed by law, serve a legitimate aim and be proportionate to the aim pursued. Fourth, the ACtHPR, by affirming the ACmHPR's practice, "neutralised" the so-called "claw-back" clauses contained in the ACHPR. The latter subject the exercise of many rights, such as the right to freedom of expression or the right to political participation, to domestic law. Article 9(2) reads: 'every individual shall have the right to express and disseminate opinions within the law' (emphasis added). The ACtHPR ruled that domestic law ought to be in correspondence with international standards and should not nullify the scope and essence of the rights it regulates.

II. Other Human Rights and Peoples' Treaties

In addition to the ACHPR, the African system of human and peoples' rights includes other African treaties adopted under the auspices of the OAU/AU, such as

• the 2018 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older People in Africa;
• the 1969 Convention regarding the Specific Aspects of Refugee Problems in Africa;
• the 2007 African Charter on Democracy, Elections and Governance; and
• the 2009 Convention for the Protection and Assistance of Internally Displaced Persons in Africa.

Two treaties in particular merit some brief discussion.

The 2003 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, also known as the Maputo Protocol, has forty-two state parties, which undertake the obligation to eliminate harmful practices which are contrary to international standards, namely behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity (Articles I(g) and V). States need to report periodically to the ACmHPR on the implementation of their obligations. In 2018, the ACtHPR found Mali in violation of the Maputo Protocol since Mali's legislation prescribed sixteen as the permissive marriage age for girls (instead of eighteen). Mali did not demonstrate the willingness to eliminate harmful traditional practices. Mali's claims that social, cultural and religious realities justified its legislation were rejected.

The 1990 African Charter on the Rights and Welfare of the Child reiterates existing rights and offers increased protection for child soldiers, refugee children and internally displaced children. The implementation of the treaty is supervised by the African Committee of Experts on the Rights and Welfare of the Child, which may consider individual complaints. In the case of Children of Nubian Descent in Kenya, it was found that Kenya had deprived children of Nubian descent of Kenyan nationality which led to prolonged statelessness. This practice qualified as disproportionate and unnecessary discriminatory treatment and violated the recognition of the children's juridical personality, dignity and best interests.

C. Protective Mechanisms

I. The African Commission on Human and Peoples' Rights

The ACmHPR is an autonomous treaty body entrusted with the mandate of promoting and protecting human and peoples' rights in Africa. Its views and findings are non-binding but carry strong persuasive authority and have contributed to the progressive development of states' obligations under the ACHPR. The discussion below briefly explains the functions of the ACmHPR, as detailed in the ACHPR and its Rules of Procedure.

1. State Reporting

Parties to the ACHPR have the obligation to report on progress and challenges concerning its implementation every two years. Non-Governmental Organisations (NGOs) are allowed to submit 'shadow reports'. The ACmHPR, in its early practice, did not publish the reports submitted by states and did not adopt concluding observations. Subsequently, it changed its approach in the interest of transparency. From 2001, the ACmHPR began adopting concluding observations and publishing state reports and its own observations on its website. However, many states have never submitted a report or tend to be very late in doing so.

2. Inter-state Communications

A state party may bring a complaint concerning an alleged violation of the ACHPR against another party before the ACmHPR. This procedure has been used only once. In 2003, in Democratic Republic of the Congo v Burundi, Rwanda and Uganda, the ACmHPR found multiple violations of the ACHPR in light of grave human rights abused and breaches of international humanitarian law committed by the armed forces of the respondent states committed occupying the eastern province of the Congo.

3. Communications Submitted by Individuals and NGOs

The ACHPR provides that 'communications other than those of state parties' may be submitted to the ACmHPR. Although the text does not clarify who may bring these communications, the ACmHPR accepts that individuals and NGOs may do so. A communication needs to meet certain requirements so that it is admissible. Interestingly, the author of the communication does not have to be the victim of the alleged violation. This is significant since victims may lack access to resources or awareness of their rights and available remedies, or they may be hesitant, perhaps even afraid, to submit complaints themselves. NGOs regularly make use of this broad standing, bringing many communications before the ACmHPR, which testifies to their prominent role in the ACmHPR's activities.

The ACmHPR has adopted many seminal views.

Example for views of the ACmHPR on how severe environmental degradation violates the right to food and the dignity of indigenous peoples: In Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria (2001), Nigeria was alleged to have caused severe environmental degradation, through the oil explorations of the Nigeria National Petroleum and Shell Petroleum Development Corporation. The land and water resources became toxic, making farming and fishing impossible for the Ogoni people. The ACmHPR held that the right to food is inseparably linked to the dignity of human beings and is a precondition for the enjoyment of all human rights. The minimum core of the right to food requires that states do not destroy or contaminate food sources.

Example for views of the ACmHPR on the role of the right to development both as a means and an end for guaranteeing human and peoples' rights: The Center for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2009) case is an apt example concerning indigenous peoples' rights and the right to development. The Endorois people, an indigenous community, had been forcibly removed from their ancestral lands, thereby endangering their culture, religion and traditional way of life. The ACmHPR proclaimed that the right to development should be treated as both a means and an end. In this instance, the right to development encompassed the states' obligation to guarantee housing for individual and peoples as well as to provide them with the ability to choose where to live.

4. Other Functions of the ACmHPR

In fulfilling its mandate, the ACmHPR also exercises a number of other functions, including:

• creating special mechanisms, such as special rapporteurs, committees and working groups
• publishing general comments, guidelines or declarations with a view to progressively developing the African human rights corpus juris and
• carrying out onsite visits, promotional or protective missions and investigative measures, where appropriate.

II. The African Court of Human and Peoples' Rights

The Arusha-based ACtHPR may be the youngest court among its regional counterparts, but its jurisdiction and case law not only present unique features but also offer valuable lessons to be studied under human rights law. The ACtHPR's mandate is provided for in the 1998 Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights, which entered into force in 2003, and its Rules of Procedure.

1. The Jurisdiction of the ACtHPR

The ACtHPR's jurisdiction may be divided into advisory and contentious. As far as its advisory jurisdiction is concerned, the ACtHPR may, at the request of an AU member state, any AU organ or any African organisation recognised by the AU, provide an opinion on any legal matter relating to the ACHPR or any other relevant human rights instrument. The ACtHPR has rendered fifteen Advisory Opinions thus far. Turning to its contentious jurisdiction, under Article 3(1) of the Protocol, the ACtHPR has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and application of the ACHPR, the Protocol and any other relevant human rights instrument ratified by the states concerned. Thirty-one state parties to the ACHPR have currently ratified the Protocol.

The question of who can bring an application before the ACtHPR (personal jurisdiction) is not straightforward. The Court may receive applications from the ACmHPR, state parties to the Protocol or African intergovernmental organisations (Article 5(1) of the Protocol). Individuals and NGOs do not have direct access to the ACtHPR unless the state against which the application is submitted has deposited the declaration described in Article 34(6) of the Protocol, accepting the ACtHPR's competence to decide such complaints. In the absence of such a declaration, a complaint can be only submitted to the ACmHPR, which may decide to refer the communication to the ACtHPR. As of January 2022, only eight states have accepted the competence of the ACtHPR to decide complaints brought by individuals and NGOs (Burkina Faso, Gambia, Ghana, Guinea Bissau, Mali, Malawi, Niger and Tunisia). Since 2016, Benin, Rwanda, Cote d' Ivoire and even Tanzania - the ACtHPR's host state - withdrew their declarations, marking an unfortunate landmark in the ACtHPR's history. However, in November 2021, the Republic of Guinea Bissau and the Republic of Niger deposited respective declarations under Article 34(6) of the Protocol allowing direct access to the ACtHPR.

The ACtHPR enjoys a unique material jurisdiction. Its mandate extends to the interpretation and application of not only the ACHPR but also any other relevant human rights instrument ratified by the states concerned. In contrast, the material jurisdiction of UN human rights bodies and regional human rights courts is limited to matters concerning only their respective constitutive instruments. The ACtHPR systematically applies, and finds violations of, a range of African and UN human rights treaties.

2. The ACtHPR's Case Law

Overall, the ACtHPR has an unfolding case-law ordering provisional measures and ruling on matters pertaining to jurisdiction, admissibility, merits and reparations. The subject matter of the cases spans across, for instance:

• the right to political participation in connection to the prohibition of independent candidature or the arbitrary revocation of one's passport
• the right to freedom of expression and whether criminal defamation statutes are proportionate and necessary restrictions
• the right to life
• the right to be free from torture
• the right to be free from arbitrary deprivation of liberty
• several aspects of the right to a fair trial and
• the right to not be deprived of one's nationality in an arbitrary fashion.

Advanced: Indigenous peoples and collective rights

The 2017 African Commission on Human and Peoples' Rights v Republic of Kenya judgment brings to the fore a series of interesting legal questions, such as the protection of indigenous peoples, the notion of collective rights and how claims in relation to a community's right to decent survival may be accommodated by/under the ACHPR. The ACtHPR held that the expulsion of the Ogiek from their ancestral lands, against their will and without prior consultation, violated their communal ownership rights under the right to property. Nonetheless, the ACtHPR left unclear whether this violation was pronounced with regard to individual members of the Ogiek or the Ogiek as a group. The ACtHPR's position may be seen as a retrogressive step compared to the approach of the ACmHPR in the 2001 SERAC and CESR v Nigeria case discussed earlier. In this case, the ACmHPR paved the way in international human rights jurisprudence for the acknowledgement of the right to property, the right to housing and the right to a dignified life as collective human rights of the Ogoni community. It remains to be seen whether, in its forthcoming judgment on reparations, the ACtHPR will recognise the entire community as a victim of human rights violations entitled to reparation.

3. Challenges and Perspectives

State parties are under the obligation to comply with the ACtHPR's judgments. If a state fails to comply, the ACtHPR notes this in its report to the Assembly of states. The AU Executive Council monitors the execution of judgments on behalf of the Assembly. The reality on the ground is that the level of compliance with the decisions is poor, as the ACtHPR itself has noted. Certain alternative measures to ensure better implementation of the judgments are under discussion.

The future African Court is expected to have a different structure and a considerably broader material jurisdiction. The Protocol to the ACHPR will be replaced by the 2008 Protocol on the Statute of the African Court of Justice and Human Rights and the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. However, neither protocol is into force. The 2008 Protocol on the Statute of the African Court of Justice and Human Rights merges the ACtHPR and the Court of Justice of the AU into a single court. Furthermore, the 2014 Protocol envisages the future African court having three separate sections: a general affairs section, a human and peoples' rights section and an international criminal law section. The AU decided to add individual and corporate criminal responsibility to the jurisdiction of the merged court. This comes as a response to the strong dissatisfaction among many African states about the International Criminal Court's (perceived) biased focus on Africa.

III. Sub-regional Mechanisms for Protecting Human and Peoples' Rights

Individuals and NGOs regularly resort to subregional African courts, established in the context of regional economic communities, in order to raise and litigate human rights claims.

The most active in the field of human rights is the Economic Community of West African states (ECOWAS). The ECOWAS Community Court of Justice can hear complaints on human rights violations and applies the ACHPR as its standard of assessment. The fact that it grants direct access to individuals, without requiring them to have exhausted domestic remedies, offers a notable litigation advantage for applicants.

The East African Court of Justice does not have explicit jurisdiction to address human rights complaints but nonetheless deals with such complaints as long as they are considered to be violations falling within the scope of the East African Community treaty.

The Tribunal of the Southern African Development Community (SADC) followed the approach of the East African Court of Justice, namely to address human rights claims without a clear mandate to do so. However, this choice was more politically controversial than expected and it seriously "backfired". After several judgment rulings against Zimbabwe and its refusal to comply, the Tribunal was de facto suspended in 2010. In 2014, the SADC adopted a new protocol that will confine the Tribunal's mandate to the interpretation and application of the SADC treaty and protocols in inter-state disputes. The protocol is not in force yet and the Tribunal remains effectively suspended.

Further Readings

• F Ouguergouz, La Charte Africaine des Droits de l'Homme et des Peuples (Graduate Institute Publication 1993)
• C Heyns, 'The African Regional Human Rights System: In Need of Reform?' (2001) 2 African Human Rights Law Journal 155
• R Murray, The African Charter on Human and Peoples' Rights (OUP 2010)
• JT Gathii (ed), The Performance of Africa's International Courts: Using Litigation for Political, Legal, and Social Change (OUP 2020)
• Documentary on the African Court on Human and Peoples' Rights (in English)

Summary of main points

• The ACHPR has certain unique characteristics compared to other human rights treaties, including the equal weight accorded to the three generations of human rights, the emphasis on the duties of the individual towards the community and the State and the absence of a derogation clause.
• Both the ACmHPR and the ACtHPR have been creative in significantly developing the scope of guarantees of ACHPR rights in detail and setting out detailed requirements for a restriction on a human right to be lawful under the ACHPR.
• The ACtHPR's function is undermined by the low number of states accepting its jurisdiction for complaints brought by individuals and NGOs and the poor compliance with its judgments.
• The mosaic of human rights protection in Africa is enriched by the human rights jurisprudence of subregional African courts.