By Kolawole Olaniyan
Twenty-five years ago, on 21 October 1986, the African Charter on Human and Peoples’ Rights (the Charter) came into force. The Charter, adopted five years earlier on 27 June 1981 by the then Organization of African Unity (OAU), and now the African Union (AU) introduced striking innovations by the normal canons of international human rights law, it entrenches the concept of ‘peoples’ rights, in addition to civil and political rights and economic, social and cultural rights, all in one single document.
Like any other human rights treaty, the Charter imposes an obligation on states parties to take specific legal and other measures to give effect to the rights and freedoms it guarantees, and to provide effective remedies in case of violations.
However, the adoption of the Charter thirty years ago was not initially considered to be a significant development. In effect, at birth, the Charter was derided and mocked; and one of its many critics even claimed, “We cannot and should not continue to delude ourselves that we have a human rights system. What we have is a façade, a yoke that African leaders have put around our [Africans’] necks.”
Perhaps, the Charter itself provides some strong grounds for scepticism as to its true value to the development and protection of human rights in Africa.
Among the failings readily imputable to it are the vagueness of the drafting and its so-called ‘claw-back clauses’, (i.e. contained in provisions of articles 4 on the right to life; 6 on the right to liberty and security of the person; 8 on freedoms of conscience, profession and religion; 10 on association; 11 on assembly; 12 on freedom of movement and residence; and 13 on the right to participate in government), which critics claim allow for too much discretion, and give rights by the right hand, and take them back with the left.
Nonetheless, despite its rocky start, the Charter, through the work of its main implementing institution—the African Commission on Human and Peoples’ Rights—and constant civil society engagement and vigilance, would seem to have exceeded all expectations, suggesting that many of the criticisms levied against it may have been overstated or mistaken.
The Charter has also remained an important source of inspiration for African human rights defenders and civil society activists, and provided a common normative currency that is invoked not only by civil society but also inter-governmental institutions.
The Charter is now an embedded part of Africa’s human rights architecture. Since its adoption thirty years ago, the Charter has also inspired a whole cluster of treaties, protocols and declarations, such as the Protocol on the Rights of Women in Africa; the African Charter on the Rights and Welfare of the Child; the African Union Convention on Preventing and Combating Corruption; the African Charter on Democracy, Elections and Governance; Declaration of Principles on Freedom of Expression in Africa; Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa; Principles and Guidelines on Fair Trial and Legal Assistance in Africa, and the Principles and Guidelines on Economic, Social and Cultural Rights, to build on and clarify the Charter’s provisions.
All members of the AU are now parties to the Charter, with the exception of the newly independent South Sudan.
Furthermore, the system of protection established under the Charter has been significantly expanded, with the adoption in June 1998 of the Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights, and its entry into force in January 2004.
The African Commission continues to strive, especially through its individual complaint procedure, to address the numerous human rights problems confronting Africa. Despite the financial and political hindrances the Commission has had to grapple with in the past years, its jurisprudence and case-law especially on civil and political rights shows that the prospects for the future are great.
The two main implementing institutions—the Commission and the Court—have harmonized their rules of procedure to include issues such as transfer and referral of cases between the two institutions; and collaboration where there is a request for interpretation of the Charter or request for advisory opinions.
The Charter also has had some cumulative impact on the respect for human rights in some countries in the course of the last thirty years. For example, without the Charter and the timely intervention of the African Commission, the death sentences passed, following a seriously flawed trial, on General Zamani Lekwot and other leaders of his Kataf ethnic group in Nigeria, would not have been commuted to a five-year jail term, and they would not have been eventually released.
Arguably, the most important contribution of the Charter was to assert the universality of human rights: human rights are not alien or new to Africa. It provides the inspirational foundation for human rights in the region.
Nonetheless, the Charter has not been fully endorsed internally, and it is rare to find national courts referring to the treaty. Moreover, the record of compliance of states parties with recommendations or decisions by the African Commission under the communication procedure is to say the least, poor. However, the non-binding nature of the recommendations may explain why they are frequently ignored by states parties.
Although the Charter articulates the vision of a legal order based on the universality and indivisibility of all human rights, economic, social and cultural rights continue to receive less attention and legal recognition when compared to civil and political rights.
Yet, classification of human rights has been shown not to be entirely accurate or practical. It is paradoxical that the affirmation that all ‘human rights are universal, indivisible and interdependent and interrelated’ is now, thirty years after the adoption of the Charter, still largely an abstract concept.
Similarly, it is dismaying that thirty years after the adoption of the Charter, many African governments continue to disregard the legal obligations that they embraced so long ago.
Human rights are still not effectively assured in practice in most countries. Persistent violations of the Charter’s provisions and extreme abuses of human rights are illustrated by cases of arbitrary arrest and detention; the use of torture; poverty, underdevelopment and economic inequality; and the unjustified appropriation of natural wealth and resources or despoiling of the environment as it is the case in the Niger Delta in Nigeria.
As Africans and their friends and partners prepare to celebrate the 30th anniversary of the Charter, African governments must do more than just congratulate themselves on the marginal achievements that have so far been recorded.
Perhaps the biggest problem of an enduring nature is the lack of political will by several governments to embrace and support the African Human Rights Court, established following decades of arduous negotiations, and protracted conferences, to enhance the protection and enforcement of the Charter’s provisions. The court, based in Arusha Tanzania, has now been fully constituted and its judges elected.
Nonetheless, while the establishment of the African Human Rights Court with the authority to hand down binding decisions was applauded by many commentators as a significant improvement in the human rights architecture in Africa, over a decade later the court remains an infant that does not yet walk.
Many of the AU member states seem to have given up on the idea of the court as they have failed or refused to embrace and ratify the protocol establishing the court, and those that have ratified the protocol continue to drag their feet on making a declaration that would allow individuals and human rights non-governmental organizations (NGOs) direct access to the court.
Since the adoption of the protocol establishing the African Human Rights Court in 1998, only twenty six of the fifty four member states of the AU have ratified it; while just five of them—Burkina Faso, Ghana, Malawi, Mali and Tanzania—have made the declaration under Article 34(6) of the protocol allowing individuals and NGOs direct access to the Court.
Human rights instruments
Yet, as a competent judicial body, the court has the capacity to address the many human rights instruments promulgated in Africa without identified judicial mechanisms. It will offer individual victims of human rights violations a regional forum for the adjudication of their claims, and the right to an effective remedy.
If fully endorsed and supported by African governments, the African Human Rights Court is capable of transforming the culture of impunity into that of respect for human rights, and restoring confidence in the regional human rights system.
On the domestic level, the court can, through its advisory and contentious jurisdictions, contribute to the establishment of democracy, the rule of law, transparency, and respect for human rights, which in turn will bring prosperity and development to the world’s most impoverished region.
But the Court’s contribution to protection of human rights across Africa will continue to be limited unless all the fifty four member states of the AU embrace and ratify the protocol establishing the court, and simultaneously accept the competence of the court by making the required declaration. Otherwise, the court will remain a paper tiger, and this will be very unfair to numerous victims of human rights violations across Africa who continue to be denied access to justice.
As Justice Sophia A. B. Akuffo, Vice President of the African Human Rights Court has rightly said, “Universal ratification will give the Court the legitimacy it needs to effectively discharge its mandate.
It will also demonstrate the commitment of States Parties to the protection of human rights and bring renewed hope to the people of Africa that, perhaps, the protection of human rights is no longer a half-hearted business as usual.
Anything short of 100% ratification will limit the jurisdiction of the African Court and the legitimacy of the protection system, as some citizens of Member States would not benefit from the ‘insurance cover’ the Court is established to provide where the remedies available from the Commission are inadequate.”.
Another interesting development of note regarding the African Human Rights Court is that following a proposal by former Nigerian president Olusegun Obasanjo, the AU decided in 2005 to merge the Court of Justice established under its Constitutive Act with the African Human Rights Court, the two courts becoming the African Court of Justice and Human Rights.
This court, with two chambers—one for general legal matters and the other for human rights—will replace the African Human Rights Court once the merger protocol adopted in July 2008 enters into force. However, the protocol establishing the court is still being ratified, and currently has received only 3 ratifications: Burkina Faso, Libya and Mali.
If the African Charter is to remain relevant for another 30 years, then African leaders must take their obligations and commitments to establish an effective and accessible African Human Rights Court very seriously.
Civil society, who has for thirty years promoted the human rights norms articulated in the Charter, and raised the concerns of unheard voices, has a greater role to play in the efforts to ensure that the court is fully accepted and endorsed by governments for the sake of African victims of human rights violations.
Only then can the Charter become a reality for millions of disempowered and disadvantaged Africans, and its overall role in the regional and national enforcement of human rights the last thirty years consolidated; and greater level of success recorded in the next thirty.
* Kolawole Olaniyan, is Legal Adviser at the International Secretariat of Amnesty International, London