Human Rights under the African Charter

Allwell Uwazuruike

• Publisher: Palgrave Macmillan
• Year: 2020
• Print ISBN:
  9783030417383
• eBook ISBN:
  9783030417390
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Law
• Index: Politics & International Relations

This book critically examines the civil, political, socioeconomic, and group rights protected under the African Charter and its Protocol on women's rights. It then examines the institutional protection of these rights through the African Commission and African Court. The book builds on the concept of regionalism within Africa and the recent drive for finding "African solutions to African problems" by tracing the development of human rights within Africa and assessing the effectiveness of Africa's core regional human rights institutions. In turn, it critically analyses the obstacles to the full implementation of human rights in Africa such as the lack of political will, jurisdictional issues, lack of resources and funding, poverty, illiteracy, corruption, and customary practices that violate human rights. In closing, the book discusses possible solutions to these problems.

© The Author(s) 2020

A. UwazuruikeHuman Rights under the African Charterhttps://doi.org/10.1007/978-3-030-41739-0_1

Begin Abstract

1. Introduction

Allwell Uwazuruike¹  

(1)

Lancashire Law School, Preston, UK

 

 

Allwell Uwazuruike

Email: [email protected]

End Abstract

The global monitoring of human rights violations has become the mandate of reputable human rights non-governmental organizations (NGOs) such as Human Rights Watch and Amnesty International. These NGOs monitor and report on human rights violations in countries around the world including in Africa, Asia, Europe and the Middle East. Unsurprisingly, African countries do not fare well in many of these reports owing largely to recurrent instances of large-scale government repressions of civil and political rights . Additionally, the scourge of poverty , often occasioned by war and sectarian violence, means that a vast proportion of inhabitants of a few African countries are bereft of some of the most basic socio-economic necessities.

It is therefore not uncommon for the African continent to be seen as comprising states that either have very little respect for human rights or are simply unable to ensure the enjoyment, by their citizens, of those rights. While such a view may be correct for a few African countries, it may miss some commendable developments, at the regional level, of a near comprehensive human rights model. However, detailed studies of the principles, implementation and challenges of this system are few and far between.

Even more interesting is the fact that, despite the commendable efforts of these African regional human rights institutions, reports of other external bodies on the state of human rights within the African continent are accorded greater media coverage and attention. Of course, there is little wrong with assessments carried out by acclaimed international institutions and states. Indeed, these should be welcome from the perspective of shining more light on human rights violations in Africa and putting pressure on states to abide by human rights norms and standards.

However, the relative lack of attention to the regional human rights system cannot bode well for the development of human rights within the continent. For one, it may promote the narrative that there is no viable regional framework for human rights within Africa. Even worse, it could allow for the misconception that human rights at its core, is alien to Africa and as such has to be policed by Western or other external bodies. Such a false narrative is easily amplified by, for instance, the requirement by Western donors of minimum human rights standards by beneficiary African states. In some cases, African governments or Heads of States have gone as far as ascribing neo-colonialist motives to some of these Western interventions. It is therefore not unusual for an incumbent African government to accuse a Western state or body of meddling or even seeking to impose Western standards on it.

There is no gainsaying the fact that the study of human rights by and for Africans has not received the deserved level of attention. This is notwithstanding laudable human rights developments such as the creation of an African Charter on Human and Peoples’ Rights, protocols on a court and women’s rights, as well as key human rights institutions such the African Commission and Court. The African continent, therefore, has its own human rights institutions and rarely falls short compared to relevant normative or institutional human rights standards. The aim of this book is to study the normative development of human rights in Africa through the African Charter and its interpretative institutions. It will be shown that Africa has taken strong theoretical and institutional steps towards human rights protections which have been compromised in the area of implementation by a range of factors that will be identified and discussed.

Aside from trying to make up for the lack of analysis of the African regional human rights system, this book, by focussing on the internal African standards, sidesteps persistently recurring allegations of neo-colonialism levelled by some African leaders against perceived Western and external interventions. It also taps into the ever-growing African solutions for African problems approach that has characterised African Union (AU) rhetoric over the past decades. This means that the focus will be on the standards and systems set by ‘Africans for Africans’ as opposed to perceived external or transcendental standards that may be seen by some as not being autochthonous or emanating from the African people.

Thus, the core question that is examined is whether African states meet their own consensually accepted human rights standards—standards drafted, adopted and labelled ‘African’. Another question that necessarily arises from this is whether the institutions for the promotion and protection of human rights in the continent are viable and effective. What are the challenges these institutions face and how can those challenges be resolved? It should not be difficult to see the benefits of this ‘in-house’ approach in the context of the development of the continent’s fledgling human rights system. Such an internal analysis complements broader analyses of human rights and helps in understanding some of the key challenges to the practice and implementation of human rights in the continent.

This book also offers an opportunity to evaluate the content and regional interpretation of the human rights norms contained in the African Charter. It will be recalled that African states, in the early aftermath of independence, and following egregious human rights violations by brutal regimes, drafted and adopted a human rights Chart for the continent in the form of the African Charter on Human and Peoples’ Rights which came into force in 1986. In 2003, member states adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa—a Protocol that further substantiates the rights provided in the Charter, this time with respect to women. Other similar human rights instruments such as the African Charter on the Rights and Welfare of the Child 1990 and the African Youth Charter 2006 have since been adopted. It is, therefore, necessary to examine just how much the interpretive organs of the African human rights system have borrowed from rulings and interpretations of other regional bodies such as the European Court of Human Rights and other international human rights institutions at the level of the United Nations .

The core idea of this book, therefore, is to critically analyse the African system of human rights developed and enforced by Africa—and the relevance of this idea in the context of the ‘African solution for African problems’ mentality. Encompassed within this idea is the non-attachment to perceived transcendental standards or examples. In other words, the book does not seek to place other regional human rights systems (such as the Council of Europe, for instance) as models to which the African system should aspire. Rather, the emphasis is on critiquing the practice of human rights in Africa against the internal standards set out for itself by the continent. It also highlights the significance of an effective overarching system of human rights at the regional level. Overall, the book can be split into three parts—the ‘African’ theory of human rights, the practice and enforcement by states of this theory and the effectiveness of the regional human rights institutions.

1.1 The First Part: Analysis of the African Charter

In evaluating the state of human rights in Africa and the performance of the regional enforcement mechanism, the first port of call has to be the African Charter—the document that sets out these rights and standards and establishes the role of the institutions. Even though inarguably the continent’s most authoritative human rights document, the decision to analyse the African Charter’s content as representing Africa’s normative standards is not based solely on its reputation. Thus, Chapter 2 examines the development of human rights in Africa and the role of the African Charter, the aim of this being to establish the status of the African Charter as a true reflection of African standards. Even though it contains what could loosely be termed ‘western adaptations’, the Charter professes the communal nature and spirit that characterised early African societies. This is shown clearly in its emphasis on peoples’ rights and duties. Also, the Charter acts as a perfect tool for analysis based on the nature of its origin and general acceptance as representing the African standard of rights.

1.2 Second and Third Parts: State Practice and Institutional Effectiveness

After setting out the norms and standards and how they ought to be applied in principle, the book proceeds to investigate how this system operates in practice. This can be described as examining the relationship between expectation and reality. The chapters accordingly address questions pertaining to the level of compliance with the Charter’s provisions and how effective the regional institutions are in ensuring those standards. An examination of how the system is operating in practice necessarily prompts the question of whether such practice reflects a proper implementation of the African Charter. Where this is not the case the appropriate response is to ask what changes must, in practice, be both proposed and then implemented in order to resolve the discrepancy between the normative standards and its implementation.

In keeping with the general theme of the book recourse is generally had to information contained in African sources such as the Activity Reports of the African Commission, Case Law (and statistics) of the African Commission and African Court , state reports of member states, Concluding Observations on state reports by the African Commission, reports of NGOs and Special Rapporteurs , research and data on state compliance with the decisions of the African Commission and Court, and a range of academic articles and commentaries.

© The Author(s) 2020

A. UwazuruikeHuman Rights under the African Charterhttps://doi.org/10.1007/978-3-030-41739-0_2

Begin Abstract

2. The African Charter as Representing the African Standard of Human Rights in the Twenty-First Century

Allwell Uwazuruike¹

(1)

Lancashire Law School, Preston, UK

Allwell Uwazuruike

Email: [email protected]

End Abstract

2.1 Introduction

This chapter is an introduction to the notion of regionalism in general and, more specifically, the African concept of human rights. It provides justification for the choice of the African Charter as the basis for analysing and assessing the concept and practice of human rights in the continent. It begins by introducing the concepts of universalism and regionalism and tracing the well-traversed universalism-cultural relativism debate. It then proceeds to examine the origin and foundation of the African Charter with a view to justifying its position as the human rights manual for the continent.

2.2 The Case for Regional Conceptions of Rights

In the aftermath of the Second World War, especially the Holocaust which was fuelled by anti-Semitism, there were movements to enshrine universal rights to forestall similar events in the future and a reluctance to allow state and even regional interpretations of rights. Early architects of the post-war institutions favoured a ‘universal’ over a particularist or regional approach to problems which, in the 1930s, had acquired a bad name.¹ The belief informed by utopian post-war thinking was that only a universal or near-universal collective of states could offer the best guarantee of international order. The 1948 Universal Declaration of Human Rights (UDHR) was a natural outcome of this inclination towards a universal solution.

Arguments for regionalism have however persisted, the debate on the universality of human rights being almost as old as the movement towards universal human rights standards.² These arguments have ranged from making a case for regional bodies as the effective machinery for enforcing universal rights to proposing that regions have autonomy in devising their own standards of rights. With regard to the former, it has been argued that neither sovereign states which are autonomous, supranational organisations which depend on voluntary patterns of compliance, nor private organisations which lack resources and enforcement mechanisms, can adequately protect human rights.³ Thus, the case is made for a protective mechanism which would function at an intermediate level, exercising authority which is broader than the sovereign state yet closer to the affected communities than a global supranational organisation—in other words, a regional human rights organisation.

Initially, the United Nations ’ (UN) approach was to shun regionalism in favour of the universal approach to human rights. However, given the rise and growth of regional bodies, and in recognition of their role in conducting political and security affairs, the UN eased its stance towards regionalism. After considerable discussions and pressure from parties with an interest in empowering regions, the principle of regionalism was accommodated by the UN Charter though within an institutional and legal hierarchy that clearly favoured universalism.⁴ This envisaged that the UN could, for instance acting through the Security Council, use regional arrangements or agencies for enforcement action under its authority. This development, while assigning important roles to regions, did not address, at least satisfactorily, the second issue of regional interpretation and construction of rights.

Non-Western countries were often reluctant to wholly apply some provisions of human rights covenants viewing the supposedly individualistic and capitalistic nature of some of these rights as purely Western ideologies. In the African case, and with the constant emergence of African scholars and critics, there was a strong debate on the actual ‘universality’ of these rights. Given that Africa had little impact in the drafting of the Universal Declaration,⁵ there was the question of whether its provisions, as well as those of subsequent international covenants adequately represented Africa’s claimed communitarian disposition and culture. The perceived imposition of Western ideals as universal and the relegation of African norms also prompted allegations of Western imperialism.⁶ This led to calls for the formulation of an African concept ...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• 2. The African Charter as Representing the African Standard of Human Rights in the Twenty-First Century
• 3. Human Rights and Duties Under the African Charter
• 4. Implementation and Compliance with the Charter Rights
• 5. Challenges to States’ Protection of Human Rights
• 6. Institutional Enforcement of the Charter: Challenges Faced by the African Court and Commission
• 7. Institutional Enforcement of the Charter: Resolving the Challenges Faced by the African Court and Commission
• 8. Conclusion
• Back Matter