The African Convention on Human and Peoples' Rights, also known as the Banjul Charter or the African Charter, is a crucial legal instrument that represents a moral and legal commitment by African leaders to uphold the human rights of over half a billion people. This charter established a regional human rights system for Africa.
The broad features of the political process of the African Charter on Human and Peoplesâ Rights (ACHPR) are well known. They are generally assumed to begin with Decision 115 at the 1979 OAU Monrovia Annual Heads of State and Government meeting (AHSG) and conclude with the ACHPRâs adoption at the 1981 OAU Nairobi AHSG. As an account this is correct but tells us very little. There is far more to the story.
The African System is the youngest of the three judicial or quasi-judicial regional human rights systems, and was created under the auspices of the African Union (AU). Like the Inter-American System (and the European System, as originally designed), it includes a commission and a court with complementary mandates.
The African Commission on Human and Peoplesâ Rights (ACHPR), African Court on Human Peoplesâ Rights (AfCHPR), and African Committee of Experts on the Rights and Welfare of the Child (ACERWC) all assess Statesâ compliance with human rights standards, including by deciding individual complaints of human rights violations.
Map of African Union Member States
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Historical Context and Key Figures
Present-day African states are principally the result of European colonization of the African continent at the end of the nineteenth century. In spite of the varied experiences of the African states, common aspirations for freedom from foreign domination and unity for purposes of greater strength and rapid socioeconomic development induced leaders to start working together to solve common problems.
By the end of the 1970âs with the exception of Namibia, which was still under South African occupation, and the continued survival of the apartheid system the goal of ending colonial or racist rule in Africa had been achieved. The OAU then began to pay more attention to resolving problems that had arisen within its member states, such as the large number of refugees who had fled interstate military conflicts and repression within their countries. It was against this general background that the organization confronted the problem of situations of serious human rights violations in some of its member states.
Three cases probably had the most impact on the OAU: those of Uganda, Equatorial Guinea, and the Central African Republic. Beginning in 1971, the regime of Idi Amin in Uganda had engaged in some of the most atrocious forms of political repression, including killings, illegal imprisonments, and expulsions of citizens as well as resident aliens of foreign origin. In Equatorial Guinea, the regime of Francisco MacĂas Nguema had been engaging in similarly atrocious repression against its citizens, causing a large number to flee to neighboring countries and beyond. Although not as vicious as the Amin and MacĂas regimes, âEmperorâ Jean-BĂ©del Bokassaâs reign in the Central African Republic also earned the dubious distinction of being among the most repressive on the African continent in the 1970âs.
The precipitating factor, however, was the controversy that followed the overthrow of the Amin regime by a combined force of Tanzanian regulars and Ugandan guerrillas in early 1979. The summit meeting of the OAU that met later in the year decided to draft an African charter on human rights as a means of giving greater protection to the human rights of citizens of African states and, it was hoped, also preventing future interstate conflicts arising out of severe cases of human rights violations. The resulting African Charter on Human and Peoplesâ Rights was approved at the 1981 annual meeting in Nairobi, Kenya.
Key Components of the African Charter
The African Charter on Human and People's Rights includes preamble, 3 parts, 4 chapters, and 63 articles. The Charter recognizes most of what are regarded universally accepted civil and political rights. 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.
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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 the right to life (Art. 4), right to health (Art. 16) and to development (Art.
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 not only awards rights to individuals and peoples, but also includes duties incumbent upon them.
The African Charter on Human and Peoplesâ Rights stipulated the basic rights incorporated in the Universal Declaration of Human Rights and other human rights documents, such as the rights to life, freedom of expression, movement, trial by an impartial judicial system, and political participation, as well as social and economic rights to work, health, education, and employment.
The African Commission on Human and Peoples' Rights (ACHPR)
The African Commission on Human and Peoplesâ Rights (ACHPR) promotes and protects human rights in the 54 Member States of the African Union that have ratified the African Charter on Human and Peoplesâ Rights. Morocco rejoined the African Union in 2017, becoming its 55th Member State, but has not yet ratified the African Charter.
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The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial body tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights (also known as the Banjul Charter or the African Charter) and considering individual complaints of violations of the Charter.
Article 30 of the African Charter, proscribes two principal functions for which the Commission was established : Promotion and protection of human and peoplesâ rights in Africa.
Article 45 of the Charter enumerates the functions of the Commission to be:
- the promotion of human and peoplesâ rights;
- the protection of human and peoplesâ rights;
- interpretation of the provisions of the Charter; and
- any other task assigned to it by the OAU Assembly.
Functions of the Commission
The Commission came into existence with the coming into force, on 21 October 1986, of the African Charter (adopted by the Organization of African Unity (OAU) on 27 June 1981). Although its authority rests on the African Charter, the Commission reports to the Assembly of Heads of State and Government of the African Union (formerly the OAU). Its first members were elected by the OAU's 23rd Assembly of Heads of State and Government in June 1987 and the Commission was formally installed for the first time on 2 November of that year.
For the first two years of its existence, the Commission was based at the OAU Secretariat in Addis Ababa, Ethiopia, but in November 1989, it relocated to Banjul, Gambia. The Commission meets twice a year, usually in March or April and in October or November.
The ACHPR is made up of eleven members, elected by secret ballot at the OAU Assembly of Heads of State and Government (subsequently, by the African Union's Assembly). The members are to enjoy full independence in discharging their duties and serve on a personal basis (i.e., not representing their home states); however, no member state may have more than one of its nationals on the Commission at any given time.
Promotion of Human and Peoplesâ Rights
The promotional function of the Commission is explained in article 45 (1) of the Charter. The main essence of this function is to sensitise the population and disseminate information on human and peoplesâ rights in Africa.
To achieve this, the Commission is mandated under article 45 (1) to âcollect document, undertake studies and researches on African problems in the field of human and peoplesâ rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoplesâ rights and, should the case arise, give its views or make recommendations to governmentsâ.
The Commission , in collaboration with NGOs and inter-governmental organisations has been able to establish a documentation centre used for human rights studies and research, and has also organised several seminars, symposia and conferences aimed at promoting human and peoplesâ rights within the continent.
Since 1988, in a bid to strengthen co-operation, the Commission has been granting observer status to NGOs. As at its 22 nd ordinary session (Tenth Anniversary), over 200 NGOs had received such status. It is also considering granting a special status to National Human Rights Institutions which the Commission sees as invaluable partners in the promotion of human and peoplesâ rights on the continent.
Members of the Commission have also been allocated states on the continent for promotional activities. The members are expected to visit these states and organise lectures with various institutions to discuss the African Charter and the Commission. At each session of the Commission, they report on their intersession activities.
The Commission has also appointed Special Rapporteurs on Prisons and other places of Detention in Africa, on Arbitrary, Summary and Extra-judicial Executions, and on the Human Rights of Women in Africa. These rapporteurs play a very significant role by researching, gathering and documenting information on these areas of human rights. This information could be used by the Commission to formulate advice to African States.
Article 45 (1) (b) of the Charter also requires the Commission to âformulate and lay down principles and rules aimed at solving legal problems relating to human and peoplesâ rights and fundamental freedoms upon which African governments may base their legislation. It is also mandated under article 45 (1) (c) to co-operate with other African and international institutions concerned with the promotion and protection of human and peoples rights.
Protection of Human and Peopleâs Rights
The second principal functions assigned to the Commission by the African Charter is stipulated in article 45 (2) as: âto ensure the protection of human and peoplesâ rights under conditions laid down in the present Charterâ.
The protective mandate, requires the Commission to take measure to ensure that the citizens enjoy the rights contained in the Charter. This entails ensuring that the States do not violate these rights and if they do, that the victims are reinstated in their rights.
To achieve this, the Charter provides for the âcommunication procedureâ. This procedure is a complaint system through which an individual, NGO or group of individuals who feel that their right or those of others have been or are being violated, can petition (complain) to the Commission about these violations.
A communication can also be made by a State party to the Charter which reasonably believes that another State party has violated any of the provisions in the Charter. The Communication will be studied by the Commission and if it meets the criteria set out in article 56 of the Charter, it will be formally accepted for consideration. The state concerned will then be informed of the allegations and invited to submit its comments on the same. Where more information is required from the complainant, the latter will be informed.
After carefully studying the arguments advanced by both parties, the Commission will decide whether there has been violation, it will make recommendations to the State and to the OAU Assembly on what the State should do including how to remedy the victim.
The Commission can also, and has on various occasions, initiated friendly settlements, where the complainant and the accused state enter into negotiations to settle the dispute amicably.
It has also sent missions to several State parties to investigate allegations of massive and serious human rights violations. At the end of such a mission, the Commission makes recommendations to the States concerned on how to improve the human rights situation.
In emergency situations - that is, where the life of the victim is in imminent danger - the Commission might invoke provisional measures under Rule 111 of its Rules of Procedure requesting the state to delay any action pending its final decision on the matter.
As part of its protective mandate, the Commission also receives and considers periodic reports submitted by State parties in conformity with article 62 of the Charter. State parties are required to submit reports to the Commission after every two years, on the legislative or other measures they have taken to give effect to the rights and freedoms recognised in the Charter.
The Commission studies these reports and at the session engages in dialogue with representatives from the States, and make recommendation; if necessary.
Interpretation
Article 45 (3) of the Charter also mandates the Commission to interpret the provisions of the Charter at the request of a state party, an institution of the OAU or an African Organisation recognised by the OAU. To date, neither the OAU nor a state party to the Charter has approached the Commission for an interpretation of any of the provisions of the Charter.
However, some NGOs have sought and obtained through draft resolutions, the interpretation of some of the provisions in the Charter. Through this method, the Commission has adopted many resolutions which give clarity and a broader interpretation to some of the ambiguous provisions in the Charter.
Other Tasks
Under article 45 (4), the Commission can perform any other task which may be entrusted to it by the Assembly of Heads of State and Government.
The African Court on Human and Peoplesâ Rights (AfCHPR)
The African Court on Human and Peoples Rights (AfCHPR) is a regional human rights tribunal with advisory and contentious jurisdiction concerning the interpretation and application of the African Charter on Human and Peoplesâ Rights (âBanjul Charterâ) and other instruments. Its jurisdiction extends to those States that have ratified the Protocol to the African Charter on Human and Peoplesâ Rights on the Establishment of an African Court on Human and Peoplesâ Rights.
Other Key Institutions
Several other institutions also play crucial roles in the African human rights landscape:
- The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) is charged with protecting human rights in Africa and interpreting the African Charter on the Rights and Welfare of the Child (ACRWC).
- The COMESA Court of Justice is the judicial organ of a regional economic community, the Common Market for Eastern and Southern Africa (COMESA), and is charged with settling disputes arising under the COMESA Treaty.
- The East African Court of Justice (EACJ) is an international court tasked with resolving disputes involving the East African Community and its Member States.
- The ECOWAS Court of Justice is the judicial organ of the Economic Community of West African States (ECOWAS) and is charged with resolving disputes related to the Communityâs treaty, protocols and conventions.
- The Southern African Development Community Tribunal was established under the Treaty of the Southern African Development Community (SADC) in 1992.
However, the most effective tool for researching their caselaw is the Institute for Human Rights and Development in Africaâs Case Law Analyser.
Significance and Impact
The adoption of the African Charter on Human and Peoplesâ Rights was a landmark in the evolution of the inter-African political system. It constituted an explicit commitment on the part of African leaders to adhere to international human rights standards with regard to the treatment of their citizens. They could no longer plausibly argue that foreign criticism of human rights violations in their countries constituted unwelcome interference in their internal affairs.
The African Charter on Human and Peoplesâ Rights provided both African and non-African human rights activists with a regional political and legal weapon to attack arbitrary rule and political repression on the African continent. On various occasions since 1981, human rights activists have invoked it when calling for fundamental reforms on the continent.
Beyond the issue of human rights, the adoption of the charter reflected an enhancement in the level of political integration on the African continent. As happened in Western Europe and Latin America, by creating a supranational human rights system, African leaders demonstrated a willingness to surrender a certain degree of jurisdiction over the political and socioeconomic situations of their citizens. This development held the promise of improving the conditions in which citizens of African states struggled to improve their political, economic, and social welfare.
The 1990âs also produced disillusionment with the effectiveness of the African human rights commission, leading to exploration in 1994 of the feasibility of establishing a court of human rights. In 1998, the OAU adopted a protocol to the African Charter on Human and Peoplesâ Rights establishing such a court. Some complications arose in establishing the court, as the OAU governments decided to reform into the African Union (AU) and to integrate the work of the African Court on Human Rights with its own African Court of Justice.
Here is a summary table of the key institutions and their roles:
| Institution | Role |
|---|---|
| African Commission on Human and Peoplesâ Rights (ACHPR) | Promotes and protects human rights, interprets the African Charter, and considers individual complaints. |
| African Court on Human and Peoplesâ Rights (AfCHPR) | Regional human rights tribunal with advisory and contentious jurisdiction. |
| African Committee of Experts on the Rights and Welfare of the Child (ACERWC) | Protects human rights and interprets the African Charter on the Rights and Welfare of the Child. |
| COMESA Court of Justice | Settles disputes arising under the COMESA Treaty. |
| East African Court of Justice (EACJ) | Resolves disputes involving the East African Community and its Member States. |
| ECOWAS Court of Justice | Resolves disputes related to the Communityâs treaty, protocols, and conventions. |
| Southern African Development Community Tribunal | Established under the Treaty of the Southern African Development Community (SADC). |
