The African regional human rights system
When, in 2000, Alston and Steiner presented the African human rights system as the modernistic, the least effective or developed, the most controversial or the most distinctive, they must be having the impression of an ambivalent regional system of the helplessness of human rights standards to curb the barbarous sprit of génocidaires.
A long history of atrocities of brutal dictators, and the pangs of human suffering in an African continent filled with manifest contradictions between norms of human rights, and efficacious human rights protection shocked the humanity, and mankind.
There are indeed many scholarly works on the issue of human rights in an African continent ranging from the philosophical to the structural, legal, and the normative.
This subject is consistently engaging endeavor for many scholars to challenge for universalism and the anomalous origins of human rights in Africa; the helplessness, ambivalence or unrealistic goals of the African human rights system; the infeasibility of certain categories of human rights and the accumulation of hindrances to human right protection in Africa.
Many others scholars have also focused on documenting the spate of violations of civil and political rights sponsored by states, since they relate to the political process, electioneering, and the democratization. The conceptuality of human rights within the frame work of political and civil rights by African intellectuals demonstrate the perceived role of African civil society. Consequently, prescriptions described for governing and nation building are in limited terms of increased participation in the electoral process and the political system that would result in more political democratization.
The historical magnitude of human rights violations and the ubiquitous skepticism concerning the effectiveness of human rights in Africa are, however, in a contradiction with the essence of discourse: perspective effort in all consequences and the central dialectic of how to generate a stronger ESCR profile across the African continent for improving the lives of ordinary Africans remain a key question.
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This paper, therefore, examines the institutional, structural and normative aspects of the African human rights system in the African Charter on Human and Peoples’ Rights and accentuates the novel view point of the system on effectuation and its capacity to maintain a vibrant integrative rights-based approach to development of human rights in Africa.
The status of peoples’ rights under the African charter
Regional human rights instruments are usually more effective than UN instruments, because they are capable to understand regional conditions much better. Significantly, the UN itself always promotes the creation of regional systems to deal with human rights and security, which should comply with UN mechanisms. The instruments of African human rights are, Africa-specific, and should obviously be expected to consider certain customs and values peculiar to the African continent.
In terms of its conceptuality, the African Charter bears significant resemblance to the content mentioned in Universal Declaration than to the Inter-American and European regional human rights systems. The philosophical foundation emphasizing the equal human rights that the African Charter mentions in its seventh Preamble paragraph follows as:
Convinced that … political and civil rights cannot be dissociated from
ESCR in their formation as well as universality and that the satisfaction of ESCR guarantees for the enjoyment of political and civil rights.
Besides its eloquent Preamble, this charter underscores the significance traditionally attributed to human rights concepts in the African continent. This instrument divides into three focal parts of 68 articles. Part I consists of a set of Rights and Duties (articles 1-29), while Part II contains ‘Safeguards and Measures’ (articles 30-63). Part II further subdivides into Organization and Establishment of the African Commission on Human and Peoples’ Rights, Mandate of the Commission, Procedure of the Commission and Applicable Principles. Part III, deals with ‘General Provisions’ (articles 64-68).
Despite its deficiencies, many scholars recognize various distinctive features of the African Charter, what is significant and striking are the dominating endorsement of the interdependence and principles of indivisibility in the African Charter. This charter, which is the leading African Rights Mechanism, provides provision for all human rights of Africans within the same context, and equal force.
The African Charter mentions a long list of human rights expressed as the rights and entitlements of each person (articles 2-18) and all Africans (articles 19-24). Some of the key rights mentioned in the African Charter are such as individual rights discourage on the prohibition of discrimination; the inviolability and integrity of the person; the legality in principle of equality and protection of the law for everyone; the protection of human dignity by implementing the prohibition of all forms of degradation and exploitation; freedom of information and expression of opinion; freedom of conscience and religion; the right of a fair trial and enabling rights; the right to freedom of movement and asylum; the right of assembly; the right to property; right of participation in the political process, including access to public affairs and facilities; the right to fair working conditions; the right to the cultural life and education; the right to health; and providing protection to women, children, the elderly and the disabled people.
Thereafter, the African Charter continues further to elaborate on a number of key issues in service of mankind such as peoples’ rights, the right to exercise liberty over natural resources and their wealth, the right to socio-economic development and self- determination, right to economic, social and cultural development, right to a protective environment as well as right to international and national security and peaceful living.
It is worthy to observe that, throughout the African Charter, explicit derogation clause is absenting as is tradition in human rights treaties. This simply implies that no African government has an authority to abridge these rights, even in case of emergencies.
While much content is available about the claw back clauses in the content of the African Charter, it most probably has skipped from the scrutiny of experts as there is no such mentioning of claw back clauses with regard to the ESCR provisions in articles 15 to 24. They are in unrestricted, unqualified and unambiguous language.
Scope and Nature of Obligations Created
The fundamental obligation of states under the African Charter is similar to what mentions the International Bill of Rights – protection of human rights and civil liberty.
Article 1 of the African Charter corroborates the fundamental obligation of states to acknowledge the duties, rights, freedoms and civil liberty preserved in this Charter and agree to endorse legislatively or other suitable measures to derive a positive effect from them. The logic of this obligation noticed in article 62, makes it obligatory for stats to submit periodical reports on the legislative or any other measures they have adopted for giving effect to the African Charter.
The African Charter extends further to define the promotional obligations of states. Under article 25, it is obligatory for states to ensure and promote through education, publication and teaching, the respect of the human rights, freedoms, and civil liberty in the Charter.
Supplementing this, in article 26 there is another provision mentioned compelling states to provide the guarantee for the independent functioning of courts and allow the improvement and establishment of appropriate national institutions assigned with the protection and promotion of the rights, freedoms and civil liberty in the African Charter. Some crucial points also surface from a synchronized study of these provisions. The language used in articles 1 and 62 unveils the overall purpose of initiating an active human rights attitude in the African continent, rather than a simple set of utopian goals.
It is evident that the human rights posture developed by the African Charter equalizes all its provisions: Political and civil rights have to be given the same priority as ESCR, and also peoples’ rights. However, it is regrettable to observe that the analysis and interpretation by the intellectuals under estimate the value of the ESCRs content of the African Charter.
While criticizers who believe that the Charter does not provide room for programmatic realization is not much. There has also been overwhelming number of activist intellectuals who strongly canvass the idea of ESCRs being lower to the political and civil rights in the African Charter, and incapable in implementation.
As an example, while admitting the indissoluble link in the universality and conception of political and civil rights and ESCRs, Rembe derived his analysis of the Charter by mentioning that it is difficult to make ESCRs justifiable in the same sense as political and civil rights – without providing any legal, empirical or moral authentication. Thus, despite the clarity in the text of the African Charter, the ample travaux préparatoires, and opinions of the distinguished African jurists, the effectuation question remains an albatross in vitalizing the ESCRs provisions in the Charter.
The reasons for this are surely unconvincing. With the prolonged historical and philosophic debates in which human rights entangled in the cold war years thereby giving the ultimate birth of human rights treaty system within the United Nation; together with the endless consequences of brutal dictatorship, culture of maladministration, and colonialism to which African scholars have for long been accustomed and exposed; African scholarship could not evade pessimism in its appreciation and uniqueness of regional human rights system.
After all, many scholars view the Charter as a product of neocolonialists and oppressors. That cynical approach to human rights concerns is simply one of the innumerable symptoms of the distorted intellectualism that permeates the African human rights terrain. The fallacy about the nature of ESCRs obligations under the Charter has also put many states in dilemma. After scrutinizing the reports, filed by African states under article 62 reveal the wrong conceptualization among many states in balancing their liabilities under the Charter, with the reformist requirements under ICESCR.
This perception is incorrect, while considering the Guidelines published by the African Commission for reporting procedure. Under these Guidelines regarding the Contents and Form of Reports on ESCRs, the African Commission specifies that:
As under political and civil rights, African Commission recommends that the reports under social and economic rights should consist of two types: initial reports and periodic reports.
It was not fortuitous that the monitoring body of African regional human rights treaty described ESCRs as fundamental freedoms. They must be obliged as comprehensively as political and civil rights. Scholars often contend that while ESCRs are subject to reforms attainment under ICESCR and in case of unavailability of any textual inference, the spirit and letters of ESCRs provisions suggest immediate implementation under the African Charter.
The Guidelines for Periodic Reports indicate that Article 20 of the African Charter demands that all communities have equal rights for participation in political activities, and possess equal opportunities of the country without any discrimination. In this light, rights of people are influential to make the state responsible to the will of its people.
Discrimination is one of the key issues concerning minority community that underlie many of the minority conflicts involving groups and the state ones. This is not simply a result of guarantee for equality and nondiscrimination. For certain groups such as the San of Botswana or the Massai of Kenya, it also results from the distinguishable feature of their characteristics and minority status.
In one of the periodic reports, African Commission has found discrimination of Batwa community. The discrimination observed is in the areas of access to justice and education, social services, and job opportunities. Many problems of the state-people relationship have resulted to implement a homogenous national culture on the diversified ethno-cultural groups. Under the African Charter, all African states will take care of the identities and cultures of non-dominating groups and provide a protection to various minorities against insults of their cultural rights.
In the African Charter, the principal mechanism that prevails to ensure and monitor the states complying with their treaty accountability is the African Commission. Article 30 of the Charter establishes the African Commission with the tripartite mandate to interpret, promote, and ensure the peoples’ rights. The responsibility of African Commission is to abide by the rules of Charter and African Commission accomplishes its mandate through the complaints procedure and state reporting procedure. The state reporting mechanism enables the African Commission to ascertain what measures a state is practicing to secure the provisions of the African Charter.
In certain cases when the African Commission has to make a judgment on the continuation of violation of human rights, the Commission uses the term as mentioning to a section of the population in a state. The usage of the term in such cases by the Commission does not prevent an insight that minority communities possess peoples’ rights under the Charter. This holds true in case of a self-identifying minority. The two such examples of the Katanga case and the Ogoni cases highlight this issue. In the case of Katanga the complainant who is the president of the Katangese Peoples’ Congress, approached the African Commission to recognize, the independence of Katanga on account of Article 20(1) of the African Charter.
There are two cases worth noting. First, the Katangese constitutes only a fraction of population of Zaire. Second, they distinguish themselves as people and thus, empowered to rights of people under the African Charter. African Commission, while deciding the case did not hesitate to refer Katangese as people without holding it significant to ascertain whether Katangese constitute one or more ethnic group. The African Commission then arrived at the conclusion that the case holds no grounds of violating any rights of people under the African Charter. As such, request for independence is not significant under the African Charter. Here, it is worthwhile observing the differentiation that the Commission anticipated in its judgment between Katanga and the state of Zaire.
Similarly, the Ogoni case also involves a violation of people’s rights, namely the right to dispose one’s natural resources and wealth under Article 21 and the rights to environment protection under Article 24. Although, in its judgment, the African Commission used the phrase “people” interchangeable with the Ogoni people and the Ogonis, apparently emphasize the differentiation of a community, with its own place in the Nigerian community. The Commission pronounced that Nigerian state violated the rights of Ogonis, inter alia, to free disposal of one’s natural resources and wealth. This presumes the Commission’s view that the Ogonis hold peoples’ rights under the African Charter.
The clear differentiation that the African Commission distinguished between the state, Nigeria, and the Ogoni people confirms this point. Certainly, the differentiation is for treating the Ognis as subjects of rights of people and the state being the bearer of obligations that impose rights.
Individual complaints procedure
The individual complaints mechanism of the African Commission has been remarkably active in reacting to a large range of human rights insults in African states. Nevertheless, certain cases brought before the Commission point to total imbalance in the communications.
A survey conducted by the African Commission between 1995 and 2002 reveals a considerable difference between the communication dealing with political and civil rights and ESCRs in the African Charter. Even when there were effective communications that require crosscutting rights, the African Commission had been flexible to excise the ESCRs portion from its remedial consideration. The feeling of the Commission becomes clear when one measures the way in which he/she deals with communications on the numerous rights in the African Charter.
One peculiar decision would support this point. In Malawi African Association, Mauritania, the Commission presented its capability to elaborate on the political and civil rights of the African Charter and offer specific and concrete remedies in unequivocal language. The African Commission, in this case, held that Mauritania’s government must setup an independent enquiry to find the fate of disappeared persons, initiate diligent steps to replace the identity documents collected from the expelled citizens, reinstate persons dismissed from their jobs without conducting enquiry process, ensure appropriate compensation for the violations, and implement legislative measures to abolish slavery.
This was one of the enormous opportunities where the African Commission slipped to elaborate on the content of ESCRs as well as draw the remedial implementation.
Human rights in Africa should be the essence of Africa’s endeavor to reclaim human rights following its devaluation by the most unjustified and discriminatory insults, especially the slavo-colonial approach of many European nations. Full restoration of humanity demands with equal emphasis on what is necessary for a Human. This equal emphasis transforms into equal implementation of all human rights, whether civil and political or economic, social, and cultural rights without racial discrimination. It demands a total change in attitude, while approaching towards ESCR in African Continent. Protecting and enforcing only political and civil rights in circumstances of exacerbated political and civil struggle occasioned by deteriorating socioeconomic conditions depicts a picture of truncated humanity.
The African Charter on Peoples’ Rights, despite facing numerous challenges is full of promise for protecting rights of people on the African continent. While it is a long and difficult journey to achieve effective protection and promotion, a positive and committed approach will meet in realization.
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