AFRICAN HUMAN RIGHTS

SYSTEMS AND STATE

COMPLIANCE WITH TREATY
OBLIGATIONS
Dr. Chacha Bhoke Murungu
LL.B Hons (Dar); LL.M; LL.D(Pretoria); Senior Lecturer in Law & Head,
Department of Law, University of Dodoma; Advocate of the High
Court of Tanzania. E-mail: cbmurungu@gmail.com

Presentation
The African Human Rights System consists of treaties and standards
providing for the promotion and protection of human rights.
The centre piece in the discussion on the African Human Rights system is
the African Charter on Human and Peoples Rights adopted in 1981. The
Charter is well acclaimed for containing the three generations of human
rights.
It contains civil and political rights (Articles 2 -13, 19 & 20), socioeconomic rights (Articles 14-18) and solidarity or group rights (Articles
18 -23) including the right to development (Article 22).
The Charter is also famous because it contains Rights and Duties
imposed on individuals and states, but it does not have derogatory clauses
(See Articles 1, 25-29). Such obligations include the duty to recognise,
promote, guarantee, respect, fulfil and protect the rights recognised under
the Charter by adopting legislative, judicial or administrative measures to
give effect to the rights. (See SERAC v Nigeria (2001) AHRLR 69
ACHPR 2001).

PROMOTION AND PROTECTION MECHANISMS UNDER THE

CHARTER
Article 30 of the Charter establishes the African Commission on Human and
Peoples Rights to promote human and peoples rights and to ensure their
protection.
Articles 45 and 46 of the Charter provides for the mandate of the African
Commission. These are promotional and protective mandate, especially:
(1)
(a) To collect documents, (b) undertaking studies; (c) researching (d) organising
seminars, symposia and conferences and disseminating information on the
rights; (e) adopting views or making recommendations on state reports to
governments
(2) Ensuring protection of rights
(3) Interpreting the provisions of the Charter
The Commission may also resort to proper methods to investigate situations of
human rights violations in states. These may include the use of Special
Mechanisms such as Special Rapporteurs and Working Groups ( implied
under Article 46)

Mandate continued
The Commission may receive communications from states parties to the
Charter or from individuals and non-governmental organisations alleging
violations of human rights by States parties to the Charter (See Articles
47-55). The Commission received inter-state communication in DRC v
Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2003).
Individual communications and communications from non-governmental
organisations must meet admissibility conditions laid down in Article 56
of the Charter
The Commission may resort to special protective or interim measures in
cases of serious or massive violations of human and peoples Rights. But
such measures are not final and conclusive on the determination of the
communications.
If states fail to comply with requests for provisional measures, the
Commission may refer such states to the African Court (Rule 118 (2) of
the 2010 Rules of Procedure of the Commission)

Mandate continued
The
Commission
adopts
Concluding
Observations
or
Recommendations on State Reports and makes its Views on
Communications in its ordinary or extra-ordinary sessions. It requires
states to comply with its findings within 180 days and report back to the
Commission on the measures the states have taken to comply with such
findings in the states periodic reports.
Kenya is one of the states that have complied with the decisions of the
Commissions (see Centre for Minority Rights Development (Kenya)
and Minority Rights Group International on behalf of Endorois
Welfare Council vs Kenya (2009) AHRLR 75 (ACHPR 2009).
The views and recommendations of the Commission are published in its
Annual Activity Reports.
The Commission may notify the Assembly of the African Union (through
the Executive Council) on cases of non-compliance with its decisions.

OTHER RELEVANT HUMAN RIGHTS TREATIES IN AFRICA

The Constitutive Act of

the African Union, 2000 is another

treaty in Africa which is aimed at protection of human rights in
Africa.
The objectives of the African Union is to promote and protect
human and peoples rights in accordance with the African Charter
and other treaties (Article 3(h))
The Principles governing the AU include respect for human rights,
rule of law and good governance (Article 4 (m) and rejection of
impunity (Article 4(o))
The AU also has the right to intervene in a member state,
pursuant to a decision of the AU Assembly in circumstances of
genocide, war crimes and crimes against humanity, and it may
added, the crime of aggression. (Article 4(h))

Other treaties continued

The Protocol to the African Charter on Human and Peoples Rights
on the Rights of Women in Africa. This was adopted in line with
Article 68 of the African Charter which allows amendments to be
made. Such amendments are in the form of Protocols.
The Protocol provides for the rights of women in Africa, ( articles 3-10,
12-21) and imposes obligations on states to ensure the rights of women
are promoted and protected (Articles 1-2,5, 11 , 14,22-26). Such
obligations include adopting necessary measures to provide budgetary
and other resources for the implementation of womens rights; to prohibit
and condemn all forms of harmful cultural practices affecting women;
ensuring sexual and reproductive rights of women; and to ensure
sustainable right to development.
The African Court on Human and Peoples Right has the mandate to
ensure compliance and interpretation of the provisions of the African
Womens Protocol (Article 27 of the Protocol).

Other treaties continued

The African Charter on the Rights and Welfare of the Child, 1990 is
another relevant treaty promoting and protecting human rights in Africa
It was adopted in 1990 and entered into force on 29 November 1999. It
provides for the rights of the African Children (Articles 1-31).
It imposes obligations on states to recognise the rights of the child
(Article 1), to protect children from child labour, abuse and torture
(article 15-17), protection against harmful practices, armed conflicts and
protection of refugee children (articles 21-23), and from sexual
exploitation (Article 27).
The Charter imposes obligations on families to ensure parental care and
protection of children (article 19-20), and children too have
responsibilities towards their families, society, state and international
community (article 31).

African Childrens Committee ctd

The COMMITTEE ON THE RIGHTS AND WELFARE OF THE
CHILD established under article 32 of the Charter is mandated to
promote and protect the rights contained in the Charter, and in particular,
to monitor implementation and ensure protection of the rights of the
child, and to interpret provisions of the Charter (article 42).
The Committee ensures such protection and implementation through
discussions on state reports and communications, and investigations or
special mechanisms (article 43, 44 & 45)
The Committee has received two communications and made decision on
one communication protecting the rights of the child in the
communications it has received (see, Institute for Human Rights and
Development in Africa (IHRDA) and Open Society Justice Initiative
(On Behalf of Children of Nubian Decent in Kenya) vs Kenya,
(Decision No.002/Com/002/2009, of 22 March 2011) in which it
required Kenya to ensure the rights of Nubian children in Kenya.
In 2012, the Committee received a Communication on the children in
Senegal, it was submitted by the Centre for Human Rights and
RADHO Senegal (On behalf of Senegalese Talibes) v Senegal. It has
not yet decided on the communication.

PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND

PEOPLES RIGHTS ON THE ESTABLISHMENT OF AN AFRICAN
COURT ON HUMAN AND PEOPLES RIGHTS

The Protocol was adopted on 9 June 1998 and entered into force on 25
January 2004.
The Protocol was adopted in line with Article 68 of the African
Charter which allows amendments to the African Charter.
The Protocol establishes the African Court on Human and Peoples
Rights which complements the mandate of the African Commission on
Human and Peoples Rights (Articles1 & 2 of the Protocol).
The relationship between the African Court and the African Commission
is indicated in the Protocol (Articles 2, 5 (1)(a), 6(1) & (3), 8 & 33 of
the Protocol; Rule 29 of the Courts Rules of Procedure, 2010; and
Rules 114 122 of the Rules of Procedure of the African
Commission, 2010.

Jurisdiction of the African Court

The African Court has jurisdiction over all cases and disputes concerning
the interpretation and application of the African Charter, The Courts
Protocol and any other relevant human rights instruments ratified by
African states concerned. The court can apply the Charter, Protocol and
any other relevant international human rights treaties as sources of law
(Articles 3 and 7 of the Protocol).
The phrase any other relevant human rights instruments refers to
primarily other African human rights treaties, apart from the African
Charter and the Courts Protocol provided that such treaties have been
ratified by African states. This does not, however, exclude

interpretation of any other relevant international human

rights treaties provided they have been ratified by African
states and these treaties have an express or implied bearing on
human rights protection or promotion. Can this mean ICCPR,
CEDAW or the Rome Statute, or the Great Lakes Protocol on
International Crimes?????

Jurisdiction of the African Court ctd

The African Court can also provide advisory opinion on any matter relating
to the African Charter or any other relevant human rights treaty to AU
member states and AU organs, provided such matter is not being considered
by the African Commission on Human and Peoples Rights.
CAN THE AU be a party to the cases brought before the African Court??
Access to the African is granted to the African Commission, a state party
which has already lodged a complaint to the African Commission, the state
party against which the complaint has been filed at the Commission, a state
party whose citizen is a victim of human rights violations, or any African
Inter-governmental organisation, and any interested state to a case, NGOs
with observer status with the African Commission and Individuals, provided
the state parties have made declarations accepting the competence of the
Court to consider cases filed by individuals and NGOs (See Articles 5 and 34
(6). Only 6 states have made such declarations: Rwanda; Tanzania; Malawi;
Ghana; Mali and Burkina Faso.
Admissibility procedure for cases before the Court is similar to that before the
Commission (See Article 6 of the Protocol and Article 56 of the African
Charter).

DECISIONS OF THE AFRICAN COURT

The Court may issue interim orders against states parties to the Protocol
if it finds that there has been violations of human rights, and such orders
can only be granted in cases of extreme gravity and urgency, and when
necessary to avoid irreparable harm to victims (Article 27 of the Protocol)
Final decisions of the African Court are judgments remedying the
affected parties, by way of fair compensation or reparation (articles 28 and
27). Judgments of the Court have to be executed by states (Article 30 of
the Protocol) and the Court may submit annual activity reports in which
it shall indicate cases of non compliance by states with judgments (Article
31).
The African Court is likely to be given criminal jurisdiction over
international crimes if the Protocol to that effect is adopted by the AU
Assembly. If this happens, the Court will have three types of jurisdictions:
Human rights; criminal and jurisdiction over disputes between African
states.

CONCLUDING REMARKS: STATE COMPLIANCE WITH TREATY

OBLIGATIONS
A majority of African states have not complied with their obligations
under the African Charter as required by Article 1 of the Charter. Only a
few states have adopted legislative measures to give effect to the rights
contained under the Charter domestically. A notable example is Nigeria
which has domesticated the African Charter into a domestic legislation.
African states have failed to submit state reports under the Charter in time.
Most reports are long overdue (see website of the African Commission).
Decisions of the African Commission are rarely implemented by African
states.
A Majority of African states have not complied with their obligations under
34(6) of the Protocol establishing the African Human Rights Court.
Libya failed to comply with the interim orders of the African Court in 2011.