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Chanakya National Law University Patna

PUBLIC INTERNATIONAL LAW PROJECT


BANJUL CHARTER : AN ANALYSIS

Submitted byNandini Suman


Roll no.- 756
5th semester

ACKNOWLEDGEMENT
First and foremost I thank almighty God for his gracious blessings upon us.
I have taken efforts in this project. However, it would not have been possible
without the kind support and help of many important people. I would like to
extend my sincere thanks to all of them.

I am highly indebted to Dr. P.P Rao for his guidance and constant supervision
as well as for providing necessary information regarding the project & also for
his support in completing the project.

I also want to express my sincere gratitude to all those authors and researchers
whose works helped me to gather various information used in this project. I also
want to thank the college library and honourable librarian for providing me the
needed books.

I would like to express my gratitude towards my parents and family members


for their kind co-operation and encouragement which helped me in the
completion of this project. I would like to express my special gratitude and
thanks to all those people who gave me such attention and time. My thanks and
appreciations also go to my friends for helping in developing the project and
people who have willingly helped me out with their abilities.

CONTENTS

TOPICS

PAGE NO.

1. Introduction

04-06

2. Creation and Development of the Charter

07-10

3. Unique features of the Charter

11-13

4. Rights and Duties under the Charter

14-17

5. Enforcement Regime

18-22

Conclusion

INTRODUCTION
The African Charter on Human and Peoples' Rights (also known as the Banjul Charter)
is an international human rights instrument that is intended to promote and protect human
rights and basic freedoms in the African continent.
It emerged under the aegis of the Organisation of African Unity (since replaced by
the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted
a resolution calling for the creation of a committee of experts to draft a continent-wide human
rights instrument, similar to those that already existed in Europe (European Convention on
Human Rights) and the Americas (American Convention on Human Rights). This committee
was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981
Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after
the reception by the Secretary General of the instruments of ratification or adherence of a
simple majority" of the OAU's member states), the African Charter on Human and Peoples'
Rights came into effect on 21 October 1986 in honour of which 21 October was declared
"African Human Rights Day".
Oversight and interpretation of the Charter is the task of the African Commission on Human
and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia.
A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on
Human and Peoples' Rights was to be created. The protocol came into effect on 25 January
2004.
In July 2004, the AU Assembly decided that the ACHP would be incorporated into
the African Court of Justice. In July 2005, the AU Assembly then decided that the ACHP
should be operationalised despite the fact that the protocol establishing the African Court of
Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session of the
Executive Council of the African Union meeting in Khartoum, Sudan, on 22 January 2006,
elected the first judges of the African Court on Human and Peoples' Rights. The relationship
between the newly created Court and the Commission is yet to be determined.
As of 2013, 53 states have ratified the Charter. It has been ratified by every AU member state
with the exception of South Sudan. The African Charter on Human and People's Rights
followed the footsteps of the European and Inter-American systems by creating a regional
4

human rights system for Africa. The Charter shares many features with other regional
instruments, but also has notable unique characteristics concerning the norms it recognizes
and also its supervisory mechanism.
The

preamble

commits

to

the

elimination

of Zionism,

which

it

compares

with colonialism and apartheid, caused South Africa to qualify its 1996 accession with the
reservation that the Charter fall in line with the UN's resolutions "regarding the
characterization of Zionism.
The Banjul Charter departs, in very significant ways, from contemporary multilateral human
rights instruments. One of these is the dynamic entrenchment of the concept of "peoples" into
international human rights theory-a concept, however, that had long enjoyed some currency
in inter- national law As early as 1790, the decree of the French Constituent Assembly
referred to both the rights of man and the rights of peoples.8 More recently, the term has been
liberally invoked "in a number of international instruments on human rights, and General
Assembly resolutions, more particularly those dealing with self-determination and permanent
sovereignty over natural resources." For example, the Charter of the United Nations was
adopted in the name of "We the Peoples" and it recognized, in Article 1(2), the principle of
"self-determination of peoples." Common Article 1 of the 1966 International Human Rights
Covenants deals with the right of peoples to self-determination. Furthermore, and
specifically, in July 1976, a group of eminent individuals meeting in Algiers proposed to the
world the Universal Declaration on the Rights of Peoples (Algiers Declaration), in which a
number of peoples' rights were elaborated. 3 In spite of this concern for peoples and peoples'
rights, the term "people" has not been authoritatively defined in any of the instruments that
employ it. Moreover, it is not used to convey identical meanings in all these instruments. The
intention of this paper, therefore, is to attempt to work out the meaning of the term "people"
as used in the Banjul Charter, which the architects deliberately left undefined "so as not to
end up in difficult discussion. " It will be argued that its meaning is not consistent in the
Charter, as it is always determined by the context of the particular rights referred to.
However, before the various meanings of the term are discussed, it might be helpful briefly to
reflect upon the philosophy underlying the concept of "people" and the relationship between
peoples' and human rights in the Banjul Charter.

AIMS AND OBJECTIVES


1. To do a detailed study of the provisions of the Banjul Charter.
2. To explore the various human rights enshrined under this charter for the people of Africa.
3. To critically analyse the features and articles of the Banjul Charter.

RESEARCH METHODOLOGY
Only doctrinal method of research was used.

CREATION AND DEVELOPMENT OF THE


CHARTER
The African Charter on Human and Peoples Rights was adopted in June 1981 and entered
into force in October 1986. Alternatively referred to as the Banjul Charter, it is an
international human rights instrument created to protect the human rights and basic freedoms
of people living on the African Continent .Although the need for the Charter has been
questioned in light of the already universal application of United Nations instruments for
upholding human rights, its creation follows in footsteps of other regional bodies in the
creation of their own unique regional human rights systems, notably the European
Convention on Human Rights (ECHR). Since its creation, the Charter has had significant
normative impact on the status of human rights on the African continent.

PASSING THE CHARTER


Although human rights have now been enshrined in legal instruments at all levels international, regional and national - when the proposal for a regional African instrument for
the protection of human rights was first articulated at the first Congress of African Jurists,
held in Lagos, Nigeria in 1961, it was not widely embraced. Whilst the Congress adopted a
declaration referred to as the Law of Lagos calling on African governments to adopt an
African convention on human rights with a court and a commission neither the colonised or
newly-decolonised states lacked the capacity to commit to such an ambitious undertaking.
Following the establishment of the Organisation of African Unity (OAU), the issue received
further consideration at the first United Nations Seminar on Human Rights in Developing
Countries1 in 1966. In 1979, the United Nations General Assembly (UNGA) adopted
Resolution 34/171 on regional arrangements for the promotion and protection of human
rights that inter alia requested the UN Secretary General to explore the possibility of holding
a seminar in developing regions to discuss the issue2

United Nations, Seminar on Human Rights in Developing Countries, Dakar, 8-22 February 1966, New York:
United Nations, 1966.
2

A/RES/34/171 (1979).

From November 28 to December 8, 1979, a conference of twenty African experts was


organised, presided over by late Judge Kba Mbaye in Dakar, Senegal. In what proved to be
the documents overarching philosophy, President Senghors opening address urged the
experts to use their imagination and draw inspiration from African traditions, keeping in mind
the values of civilisation and the real needs of African people, the right to development and
the duties of individuals3. The Committee prepared an initial draft of the Charter after about
10 days of deliberation.
A scheduled conference to adopt the draft Charter, due to be held in Ethiopia, could not take
place due to hostility from certain African governments towards regional human rights
protection in Africa. In the face of such hostility, and at the invitation of the OAU SecretaryGeneral, the President of Gambia convened two Ministerial conferences in Banjul, The
Gambia. In January 1981, at the second session of the Ministerial Conference in Banjul, a
draft text, composed of 68 articles4, was completed.
This draft text was submitted to the OAU Committee of Ministers during the 37th OAU
session held in Nairobi, Kenya in June 1981. The ministers, unable to agree, suggested
changes - especially in relation to Article 45 and the power of the African Commission on
Human and Peoples Rights5to intervene in the internal affairs of member states. However,
the document was submitted without amendments and adopted by the OAU Assembly on
June 27, 1981. After ratifications by the absolute majority of member states of the OAU, the
Charter came into force on October 21, 1986.
On the difficulties in passing the Charter, Ouguergouz notes that:
According to Balanda, this desire to succeed could be ascribed to a specific event; and he
observed that, when the news came that the delegates from Upper Volta had been arrested
shortly after attending the Banjul meeting, held in the immediate aftermath of a change of
political regime in their country, the need not just to emphasise human rights but to focus on

See: Ouguergouz F., The African Charter on Human and Peoples Rights. A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York,
2003, pp. 377-378,
4
African Charter on Human and Peoples Rights, OAU Ministerial Meeting on the Draft African Charter on
Human and Peoples Rights, Banjul (The Gambia), 7-19 January 1981, OAU DOC CAB/LEG/67/3/Rev. 5
5
Ouguergouz F., The African Charter on Human and Peoples Rights. A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York,
2003, p. 47.

their actual enjoyment appeared in a fresh light; the chief outcome of this was to speed up the
second Banjul meeting, which ended before the scheduled date.6
There is nothing new about the proposition that the international human rights movement
reflects, to a large extent, the liberal, individualistic tradition of civil and political liberties as
developed in such countries as Great Britain, the United States and France. There is
something very new, on the other hand, in the present attempt by the Organisation of African
Unity to embody a list of collective or peoples' rights in a human rights convention that
provides for the enforcement of those rights.7 For some time now, the belief has been
expressed that the world must move beyond the standard Western-oriented civil and political
rights. Only now, however, with the drafting in 1981 of the Banjul Charter on Human and
Peoples' Rights, are serious steps being taken in that direction. It would appear that
remarkably little consideration has been given to the legal problems that might arise when
(and if) the peoples' rights provisions of the Banjul Charter come into force. The tendency
has been to assume that these peoples' rights are what one might call autonomous rights-i.e.
existing entirely on their own, separate and apart from the traditional civil and political rights.
Such may be the case conceptually, but in practice the position is likely to be very different.
For instance, it is difficult to conceive how the peoples' rights of the African Charter will be
able to form the bases of claims before the African Commission on Human and Peoples'
Rights.5 How will claimants before the Commission be expected to establish that a State has
interfered with, say, the right of all peoples to "their economic, social and cultural
development with due regard to their freedom and identity and in the equal enjoyment of the
common heritage of mankind" (Art.22(1) of the Banjul Charter)? Or with the right of all
peoples to "national and international peace and security" (Art.23(1) of the Charter)? Or with
the right of all peoples to "a generally satisfactory environment favourable to their
development" (Art.24)? It would appear much more likely that considerations of the rights of
collectivities or of peoples will emerge, in African human rights law, not entirely on their
own, but rather as aspects of problems involving either the more traditional civil liberties or
perhaps just ordinary litigation. The important legal issues of the future in African human
rights law-and, indeed, in the law of collective or peoples' rights generally-will not be such
matters as the meaning of, say, the right to development in the abstract, but rather (putting the
6

Ouguergouz F., The African Charter on Human and Peoples Rights. A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff Publishers, The Hague / London / New York,
2003, p. 46.
7
Ian Brownlie, Basic Documents on Human Rights (2nd ed., 1981), p.118

matter at its broadest) such questions as how far the traditional concepts of individually
oriented civil rights will have to be modified in order to "make room" (as it were) for the
collective rights. The important questions in the future about collective or peoples' rights,
then, will concern not necessarily the intrinsic meaning of these new rights, in the abstract, so
much as their relationship to the traditional body of human rights law.

10

UNIQUE FEATURES OF THE AFRICAN CHARTER


It is logical to question the need for an African human rights constellation when United
Nations instruments have universal application. In 1981, when the African Charter was
adopted, the core international treaties on human rights (Universal Declaration of Human
Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and
International Covenant on Economic, Social and Cultural Rights (ICESCR)) were already in
place. Whilst some have argued that the priority for African States should have been to join a
universal regime and implement its measures effectively instead of starting a new one, there
are, however, four features of the African Charter that make it unique and necessary for the
continent.
i) Third generation rights
Firstly, the Charter enshrines third generation rights or rights of solidarity (see Art. 22
Right to Economic, Social and Cultural Development; Art. 23 Right to National and
International Security and Peace; and Art. 24 Right to a General Satisfactory Environment).
Traditional or first generation rights place the individual at the centre of discourse. In the
Charter, this focal point is expanded to cater for the collective rights of the community the
word peoples functions as a legal entity with actionable rights, in accordance with Article
19.
Although the text of the Charter leaves the term peoples rights open - possibly in
recognition of the diversity of the groups it could accommodate - the Commission has
developed jurisprudence on a case-by-case basis. It has determined whether groups affected
by human rights violations are entitled to any right as a people8, and it has already had the
opportunity to sanction their violation9
In other international instruments, especially in the resolutions of the United Nations General
Assembly, these types of third generation rights are rarely capable of being construed as

African Commission on Human and Peoples Rights, Communication 276/03 Centre for Minority Rights
Development (Kenya) and Minority Rights (on behalf of Endorois Welfare Council) / Kenya, November 2009.
9
African Commission on Human and Peoples Rights, Communication 155/96 Social and Economic Rights
Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, October 2001.

11

legally binding10. The status granted to these third generation rights in the African Charter is
unique.
The indivisibility of third generation rights was recognised in the case of SERAC v Nigeria,
para 68 which states that clearly, collective rights, environmental rights, and economic and
social rights are essential elements of human rights in Africa. The African Commission will
apply any of the diverse rights contained in the Charter. It welcomes this opportunity to make
clear that there is no right in the African Charter that cannot be made effective11
ii) True indivisibility and interdependence of rights
Secondly, when one looks at the drafting context of the international bill of rights, it is quite
exceptional the way in which the African Charter juxtaposes previously compartmentalised
rights: on one hand, civil and political rights are brought together with economic, social and
cultural rights, and, on the other hand, individual and collective rights viewed in tandem.
The international bill of rights was originally intended to be one comprehensive document,
but the Cold War context brought about regional bloc voting - particularly between the West
and Communist states and three separate documents were created the Universal Declaration
of Human Rights, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. The African Charter stays
true to the purported indivisibility and interdependence of all sets of human rights.
Accordingly, all rights are contained within the same instrument and whenever there is a
conflict between two or more rights, a balance is struck between them.
iii) Rights and duties together
Thirdly, the Charter is more specific about the implementation of rights by stating both the
rights and duties of the individual. Although most definitions of law commonly agree that
rights also entail duties, no human rights instrument elaborates on the side of duties. The
African Charters approach is excellent in this respect. While the African Commission has
not had a chance to make any finding on the merits in relation to the duties, domestic courts
have. For instance, in the case of dAlmeida Gatan and Hilaire before the Constitutional

10

See for instance: A/RES/39/11 Declaration on the Right of Peoples to Peace.


African Commission on Human and Peoples Rights, Communication 115/96 The Social and Economic Rights
Action Centre and the Centre for Economic and Social Rights/Nigeria, October 2001.
11

12

Court of Benin, it was found that two children have violated their duty vis--vis their parents
by physically abusing them.12
v) Specific emphases
Fourthly, the Charter provides a specific emphasis on development, decolonisation, and racial
discrimination. Although in recent times this has lost much of its urgency, there are still
instances where it should help in the protection of minority rights notably in the right to
self-determination in the Western Sahara and Cabinda.

12

Republic of Bnin, Constitutional Court, Decision DCC 96-024, 26 April 1996 (in French
only:http://www.cour-constitutionnelle-benin.org/doss_decisions/960424.pdf).

13

RIGHTS AND DUTIES UNDER THE CHARTER


CIVIL AND POLITICAL RIGHTS
The Charter recognizes most of what are regarded universally accepted civil and political
rights. The civil and political rights recognised in the Charter include the right to freedom
from discrimination (Article 2 and 18(3)), equality (Article 3), life and personal integrity
(Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel,
inhuman or degrading treatment or punishment (Article 5), rights to due process concerning
arrest and detention (Article 6), the right to a fair trial (Article 7 and 25), freedom of
religion (Article 8),freedom of information and expression (Article 9), freedom of
association (Article 10), freedom to assembly (Article 11), freedom of movement (Article
12), freedom to political participation (Article 13), and the right to property (Article 14).
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. The provisions concerning fair trial and
political participation are considered incomplete by international standards.13 However, this is
subject to argument as for example Article 5 of the Charter states "Every individual shall
have the right to the respect of the dignity inherent in a human being and to the recognition of
this legal status. All forms of exploitation and degradation of man particularly slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited"
also, Article 15 states "Every individual shall have the right to work under equitable and
satisfactory conditions, and shall receive equal pay for equal work" - which may be
understood to prohibit forced or compulsory labour, although this is not explicitly mentioned.
Similarly, the Charter does not explicitly recognise the right to vote as a means of political
participation, but Article 13 states "(1) Every citizen shall have the right to participate freely
in the government of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law. (2) Every citizen shall have the right to equal
access to the public service of his country. (3) Every individual shall have the right of access
to public property and services in strict equality of all persons before the law."

13

Christof Heyns, the essentials of...Human Rights, 2005

14

NONDISCRIMINATION
African Charter contains two articles dealing with this subject. Article 2 provides for the
"enjoyment of the rights and freedoms recognised and guaranteed in the . . . Charter" on a
non-discriminatory basis. It is analogous to Article 14 of the European Convention on Human
Rights. Article 3 of the Banjul Charter, on the other hand, provides for the general equality of
all persons before the law and for the entitlement of all persons to equal protection of the law.
The analogy here is to the Fourteenth Amendment of the United States Constitution and also
to Article 24 of the American Convention on Human Rights. These articles of the African
Charter appear unexceptionable enough, until one considers that in many African States, such
as the three with which the present discussion is concerned, there are entire systems of
customary law co-existing with the formal legal systems" of the type familiar in European
and American countries.14 In areas such as family law and succession, it is entirely reasonable
to suppose that customary rules will diverge from "official" ones. The question then arises: to
what extent is such divergence compatible with the general norm of non- discrimination? In
this connection, it might be recalled that the conclusion of the African Conference on the
Rule of Law of 1961 (a gathering of legal scholars in their private capacities) contained an
express provision on this point. It recommended that the customary law of the African
countries then just emerging into independence be administered by the ordinary courts,
although it did not recommend that the substance of that law be abolished.15

ECONOMIC, SOCIAL AND CULTURAL RIGHTS


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 theright to life (Art. 4), right to health (Art. 16) and to development (Art. 22).

14

Schapera, "Contract in Tswana Law", in Ideas and Procedures in African Customary Law (Max Gluckman
(Ed.), 1969), p.318
15
Para.4 of the Conclusions of Committee III of the African Conference on the Rule of Law, in International
Commission of Jurists, African Conference on the Rule of Law, Lagos, Nigeria (1961), p.20; reprinted in Ian
Brownlie, Basic Documents on Human Rights (2nd ed., 1981), p.431

15

PEOPLES' RIGHTS AND GROUP RIGHTS


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 awards the family protection by the state
(Article 18), while "peoples" have the right to equality (Article 19), the right to selfdetermination (Article 20), to freely dispose of their wealth and natural resources (Article
21), the right to development (Article 22), the right to peace and security (Article 23) and "a
generally satisfactory environment" (Article 24).

DUTIES UNDER THE CHARTER


The

Charter

not

only

awards

rights

to

individuals

and

peoples,

but

also

includes duties incumbent upon them. These duties are contained in Article 29 and are as
follows:

The duty to preserve the harmonious development of the family.

To serve the national community by placing both physical and intellectual abilities at its
service.

Not to compromise the security of the State.

To preserve and strengthen social and national solidarity.

To preserve and strengthen national independence and the territorial integrity of one's
country and to contribute to its defence.

To work to the best of one's abilities and competence and to pay taxes in the interest of
society.

To preserve and strengthen positive African cultural values and in general to contribute to
the promotion of the moral well-being of society.

To contribute to the best of one's abilities to the promotion and achievement of African
unity.

ADDITIONAL INSTRUMENTS
African States have developed four other instruments to complement the substantive legal
framework of the African Charter. These instruments focus on specific groups of people and

16

areas of life, which are deemed to be particularly vulnerable to human rights abuses. Rights
are articulated in more detail to offer additional protection.
(i) The African Charter on the Rights and Welfare of the Child, 199016;
(ii) The Protocol on the Rights of Women in Africa, 2003;
(iii) The African Charter on Democracy, Elections and Governance, 2007;17 and
(iv) The African Union Convention for the Protection and Assistance of Internally Displaced
Persons in Africa, 2009.18
Another instrument, which also complements the African Charter, is the OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa. However, it was adopted in
1969, before the African Charter.
These instruments substantiate the African Charter and offer alternative mechanisms for
enforcement.

16

See the text of the Charter on the website of the African


Union:http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_Wlefare_of_
the_Child_AddisAbaba_July1990.pdf.
17
See the text of the 2007 Charter on the website of the African
Union:http://www.au.int/en/sites/default/files/AFRICAN_CHARTER_ON_DEMOCRACY_ELECTIONS_AND_GOV
ERNANCE.pdf.
18
ee the text of the 2009 Convention on the website of the African
Union:http://www.au.int/en/sites/default/files/AFRICAN_UNION_CONVENTION_FOR_THE_PROTECTION_AND
_ASSISTANCE_OF_INTERNALLY_DISPLACED_PERSONS_IN_AFRICA_(KAMPALA_CONVENTION).pdf.

17

ENFORCEMENT REGIME
The African Charter had initially only envisaged the existence of the African Commission to
operate in tandem with the domestic institutions of each State party. However, additional
organs were later set up to further enforcement capabilities- either through a specifically
designed instrument such as the African Court or through some of the additional instruments
mentioned above, such as the African Committee of Experts on the Rights and Welfare of the
Child.
i) African Commission on Human and Peoples Rights
The original organ, the African Commission on Human and Peoples Rights19was established
in 1989 and is composed of 11 members (Art. 31). It has a twofold mandate: promotion and
protection (Art. 30).
Promotion entails advocating human rights in Africa and ensuring that the instrument and its
provisions are well known. The Protective mandate is implemented through the reporting
regime and the communication practice.
a) Reporting
Under the reporting regime, each State party has the obligation to submit a report every two
years (Art. 62). However, the African Charter does not specify which organ must receive the
report or the precise mandate of the recipient organ.
During its 24th Ordinary Session, the African Commissions suggestion that states submit
their reports to it for assessment and recommendation was approved by the AU Assembly20.
In practice, the majority of the States submit their reports late and the African Commission
lacks any enforcement mechanisms to ensure any effective repercussions - except by naming
the states.
b) Communications

19

See the website of the African Commission: http://www.achpr.org/.


See African Commission on Human and Peoples Rights, Resolution on Recommendation on Periodic
Reports, April 1988 available online (http://www.achpr.org/sessions/3rd/resolutions/3R/).
20

18

Communications can emanate from states (Article 47) or from others present at Ordinary
Sessions (Article 55). The African Commission is empowered to hear these but cannot act
with any force unless it goes through the chief organ of the continental organisation, the
Assembly of the African Union.
While communications by states is part of classical international law, communication other
than those of State Parties in Article 55 is quite vague. The African Commission has adopted
a broad approach and has interpreted the article as referring to communications submitted by
organisations registered with it and individuals.
However, this approach is limited because any decision by the African Commission on a
communication will still be submitted to the Assembly. Decisions within the Assembly are
usually derived through a consensus and, in this case, it means that the respondent state
would have the right to oppose any authorisation for publication. Even after publication, the
African Commission still lacks mechanism to follow up and to ensure compliance.
ii) The African Court
This flaw has been corrected with the Protocol establishing the African Court on Human and
Peoples Rights (African Court) adopted in 199821and in force since January 2004. While the
African Commission is a quasi-judicial organ, the African Court is a fully-fledged court with
11 judges - the first bench was elected in January 2006 and sworn in a few months later.22
The African Court is mandated by the Protocol to determine cases brought before it by any
state party, the African Commission, any African intergovernmental organisation, but also
civil society organisations and individuals (Art. 5 of the 1998 Protocol).
In the case of civil society organisations and the individuals, and in contrast to the procedure
under the African Commission, the respondent state needs to make a declaration authorising
the application (Art. 34(6) of the 1998 Protocol)23.

21

See the text of the Protocol on the website of the African


Union:http://www.au.int/en/sites/default/files/PROTOCOL_AFRICAN_CHARTER_HUMAN_PEOPLES_RIGHTS_E
STABLISHMENT_AFRICAN_COURT_HUMAN_PEOPLES_RIGHTS_1.pdf.
22
See the website of the African Court on Human and Peoples Rights (http://www.african-court.org/).
23
http://www.au.int/en/sites/default/files/achpr.pdf.

19

The Court is also mandated to provide advisory opinions upon the request of any member
state of the African Union, the African Union itself, any of its organs, or any African
organisation recognised by the African Union (Art. 4 of the 1998 Protocol).
iii) The African Court of Justice and Human Rights
At the time when the Protocol establishing the African Court entered into force in 2004, the
serving Chairperson of the African Union and President of the Federal Republic of Nigeria,
Olusegun Obasanjo, suggested that the Court should be merged with the AUs African Court
of Justice (ACJ) to cut costs. The ACJ was the main judicial organ of the African Union
dealing with interstate disputes. The two courts merged to create the African Court of Justice
and Human Rights in July 2008 in Sharm El-Sheikh, Egypt.24 The merged Court is composed
of 16 Judges assigned to two sections: general affairs and human rights.
This institutional judicial framework might face new challenges following plans to extend the
jurisdiction of the Court to include criminal matters. This development is directly related to
the criticism of the International Criminal Court primarily for its focus on Africa and the
indictment of Omar Al Bashir. A draft protocol has been submitted to the Assembly of the
African Union but during its summit in July 2012, the Assembly postponed its adoption until
further information from the Commission is received25.
The African Court of Human and Peoples Rights (ACHPR) was established by the
Protocol to the African Charter on Human and Peoples Rights on the Establishment of an
African Court on Human and Peoples Rights (the Court Protocol) which entered into force in
2004.
It is a regional court created to make judgments on African Union states' compliance with
the African Charter on Human and Peoples' Rights. It came into being on January 25, 2004
with the ratification by fifteen member states of the Protocol to the African Charter on
Human and Peoples Rights Establishing the AfCHPR. As of April 2014, just 27 of the
African Union's 54 members have ratified and are parties to the Court. The AU discourages
prosecution of human rights abuses in the International Criminal Court, hoping that they
would be tried by the AfCHPR instead; but the AfCHPR has achieved very little.
24

Elias O., Introductory Note to the Protocol on the Statute of the African Court of Justice and Human Rights,
48 International Legal Materials 314 (2009), pp. 334-336
25
Assembly/AU/Dec. 427 (XIX) Decision on the Protocol on Amendments to the Protocol on the Statute of the
African Court of Justice and Human Rights

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On January 22, 2006, the Eighth Ordinary Session of the Executive Council of the African
Union elected the first eleven Judges of the African Court on Human and Peoples' Rights.
Judges are normally elected for six-year terms and can be re-elected once. The President and
Vice-President are elected to two-year terms and can be re-elected once.
The Court had its First Ordinary Session from July 25, 2006 in Banjul, The Gambia.
Member states of the protocol establishing the Court, as well as the African Commission and
African inter-governmental organisations, may bring before the Court applications against
members states of the protocol.
Individuals and NGOs with observer status before the African Commission on Human and
Peoples Rights, however, can file applications only against members states accepting that
specific option (as of 2013, Burkina Faso, Ghana, Malawi, Mali, Tanzania and Rwanda).
iv) African Committee of Experts on the Rights and Welfare of the Child
The African Commission is further supplemented by an African Committee of Experts on the
Rights and Welfare of the Child (ACERWC).26 In July 1990, the OAU adopted the African
Charter on the Rights and Welfare of the Child, which establishes this Committee (Art. 32 of
the 1990 African Charter). This Charter entered into force on 29 November 1999 and the first
11 members of the Committee were elected in July 2001. Forty-six States have already
ratified the Charter. The mandate of the Committee of Experts is to monitor the
implementation of the Charter, both through promotion and protection, with the possibility
for civil society organisations and individuals to submit individual applications. Until now,
the Committee has issued only one decision where it found that Kenya violated various rights
established in the 1990 Charter27.
All these institutions support the African Commission to ensure protection of human rights in
Africa.

26

See the website of the Committee: http://www.acerwc.org/.


African Committee of Experts on the Rights and Welfare of the Child (ACERWC), Decision on the
Communication submitted by the Institute for Human Rights and Development in Africa and the Open Society
Justice Initiative (on behalf of Children of Nubian Descent in Kenya) against the Government of Kenya, 22
March 2011 (http://www.acerwc.org/wp-content/uploads/2011/09/002-09-IHRDA-OSJI-Nubian-children-vKenya-Eng.pdf).
27

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CONCLUSION
The task of building an effective international law of human rights for Africa-including a law
of collective or peoples' rights-is likely to require the skills of the sociologist and the
anthropologist as well as of the lawyer. The reason, in brief, is that it is simply naive to
suppose that a system of international human rights law can or will descend upon Africa from
above, as it were, like some sort of juridical Pentacost. The central thesis of this discussion
has been that, on the contrary, it is essential to understand something of the pre-existing legal
and socio-economic bases upon which the law of the African Charter will build. The
sweeping generalisations which characterise such current human rights initiatives as the
"right to development" are all too likely to prove irrelevant to the living law of Africa (or of
anywhere else).
It is an unfortunate weakness of the Banjul Charter that its provisions on peoples' rights are
so vague and sweeping as to be hardly more than mere rhetoric. They are more likely to
confuse lawyers than to enlighten them. More specifically, they are likely to distract legal
scholars from the hard labours which await them in this area. When (and if) the African
Charter enters into force, it will-or at least should-become necessary to make difficult
decisions about the social, economic and legal conditions prevailing in the various States
parties, in order to decide what modifications will have to be made to the traditional body of
individualistically oriented human rights norms. It is from the political, economic, social and
legal thickets of the individual African States that a meaningful law of collective or peoples'
rights will emerge (if at all), rather than from the lofty pronouncements of such rights in the
abstract. It is hoped that this study may constitute a small advance survey of these as yet
unexplored thickets
All 53 Member States of The African Union have ratified the African Charter on Human and
Peoples Rights. This makes it the most important human rights instrument on the continent.
Only Morocco, which withdrew from the continental organisation in 1983, is not a member
state. While its substance is determined by Member States, like every other international law
instrument, its life and application does not depend exclusively on the States. It is, therefore,
the duty of every African to ensure compliance, using as needed the various enforcement
mechanisms in place. If these conditions are fulfilled, the rule of law and the protection of
human rights on the continent will improve.

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BIBLIOGRAPHY
1. Hassan B. Jallow , The Law of the African (Banjul) Charter on Human and People's
Rights, Trafford Publishing, 2007.
2. A. M. Fanana, Measures of safeguards under Banjul Charter on Human and Peoples
Rights- A Comparative Study, Institute of Soutern African Studies, Lesotho, 2002.
3. Charles Mwalimu, The Golden Book: Philosophy of Law for Africa Creating the National
State of Africa, Peter Yang Publishing Inc., New York,2010.
4. Chris Maina Peter, Human Rights In Africa, 10th Volume, Greenwood Press, Michigan,
1990.

WEBSITES

http://www.au.int/en/sites/default/files/Welfare%20of%20the%20Child_0.pdf.

http://www.african-court.org/).

http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_
Wlefare_of_the_Child_AddisAbaba_July1990

http://www.achpr.org/states/reporting-procedure/.

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