Human rights in Africa: normative, institutional and functional complementarity and distinctiveness

Abstract

While the United Nations is the main human rights norm-creator for Africa, the Organisation of African Unity/African Union has ‘appropriated’ many of these standards in treaties of its own. In as far as these treaties deviate from a global consensus, they do so to ensure greater normative legitimacy in the African context. The institutions created under AU human rights treaties — especially the African Commission on Human and Peoples’ Rights — have shown themselves as relatively effective in promoting and protecting human rights. While the African Court on Human and Peoples’ Rights was added by way of a subsequent redesign of the system, its potential has remained largely unexplored. In addition, the emergence of subregional courts as fora to provide relief to victims of human rights has opened the door for competition and forum shopping. These developments have often been initiated and steered by civil society organisations and subregional judicial institutions rather than member states of international organisations. Much can still be done to strengthen and extend complementarity between international organisations in this field.

Keywords:

• human rights
• norm-creation
• African human rights system
• African Charter on Human and Peoples“ Rights
• subregional courts
• complementarity

Notes

1. The term ‘international organisation’ is here used as comprising intergovernmental organisations of global scope, such as the UN, with regional (e.g. continent-wide) membership, such as the AU, and subregional intergovernmental organisations, which in Africa correspond with the ‘regional economic communities’.

2. The Saharawi Arab Democratic Republic (‘Western Sahara’) is a member of the AU, but not of the UN. Its acceptance within the OAU in 1984 caused Morocco to give up its membership. Morocco is a member of the UN.

3. See Hathaway OA ‘Why do countries commit to human rights treaties?’, Journal of Conflict Resolution, 51, 4, 2007, pp. 588–621.

4. War and conflict undeniably affect human security and thus also human rights, as illustrated by recent events in Côte d'Ivoire and Libya. At the time of writing, these situations remain in flux. Based on the understanding of sovereignty as responsibility, the notion gained acceptance that the international community has the ‘responsibility to protect’ civilians or citizens against the serious violation of their rights — even by their own governments. While the UN Security Council has the primary role of authorising any military intervention, it may also authorise regional organisations such as the AU to do so. In the case of Libya, the Security Council acted (on 17 March 2011) by allowing all necessary measures to protect civilians, including the establishment of a no-fly zone. Although all three AU members on the Security Council voted in favour of this action, the AU advocated an approach based on negotiations towards the implementation of political reforms based on the ‘unity and territorial integrity of Libya’, as well as the ‘rejection of any foreign intervention, whatever its form’. This difference in approach came to a head when the AU High-Level ad hoc Committee was refused to travel to the country on 20 March 2011. In respect of Côte d'Ivoire, there was more congruence in the approach of the UN and AU, although criticism has been directed at the UN military involvement and actions by prominent African figures, including former president Thabo Mbeki.

5. For concern about this issue from the point of view of international law more generally, see International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682/Add.1, 2 May 2006.

6. It seems to me that the likelihood of conflict is limited, exemplified in the small number of conflicting human rights-related decisions over an extended period by the European Court of Human and Rights and European Court of Justice. In addition, conflict may be dealt with the ‘conflict rules’ set out by the International Law Commission, ibid., at paras 33–43: the superiority of ‘jus cogens’ rules and art 103 of the UN Charter: ‘In the event of a conflict between the obligations of the Members of the UN under the … Charter and their obligations under any other international agreement, their obligations under the … Charter shall prevail.’

7. See, for example, the ‘Introduction’ to the M'Baye draft African Charter on Human and Peoples’ Rights reprinted in Heyns CH (ed.) Human Rights Law in Africa 1999. The Hague: Kluwer Law International, 2002, p. 65, where it is stated: ‘The draft is largely drawn from the provisions of the UN International Covenant on Economic, Social and Cultural Rights and the American Convention on Human Rights’. However, the Universal Declaration and ICCPR are also important reference points in this process.

8. It should be recalled that the Universal Declaration already reaffirms in its Preamble the faith of the ‘peoples of the United Nations’ in fundamental human rights, and that the Covenants provide, in common article 1, for the right of ‘peoples’ to self-determination.

9. However, this resemblance is not wholesale. With reference to the American Convention/ICCPR, the main differences are the omission from the Charter of the right to privacy (see art. 17 of the ICCPR and 11 of the American Convention, also art. 12 of the Universal Declaration), the open ended restriction or limitation clauses (see the general limitation clause in the Universal Declaration (art. 29), which is largely echoed in the African Charter (art. 27), but with the crucial omission of the qualification ‘in a democratic society’; the clause is also reminiscent of the American Declaration of Human rights, but again, omitting the crucial term ‘advancement of democracy’ (art. 28)), the omission of a derogation/suspension clause, an equivocal provision on the right to vote (compare art. 13 of the Charter to art. 21 of the Universal Declaration; omitted from the Charter is provision for ‘periodic and genuine elections which shall be by universal and equal suffrage’; this formulation is taken over in the ICCPR (art. 25(b)), and less elaborate fair trial guarantees.

10. The ‘concise and general formulation’ with respect to socio-economic rights ‘is in line with the concern to spare our young states too many but important obligations’ (Rapporteur's Report OAU Doc CAB/LEG/67/Draft Rapt. Rept (III) Rev. 4, Annex II to the Report of the Secretary-General on the draft African Charter on Human and Peoples’ Rights, OAU Doc CM/1149 (XXXVII)). Omitted from the Charter are, for example, the right to social security (art. 22 of the Universal Declaration), the right to a standard of living including food and housing (art. 25 of the Universal Declaration), and the right to form and join trade unions and to strike (art. 8 of the ICESCR).

11. See, for example, Mutua M ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’, Virginia Journal of International Law, 35, 1995, p. 339.

12. See, for example, reliance on the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Care in Purohit and Another v The Gambia ((2003) AHRLR 96 (ACHPR 2003), para. 60).

13. See, for example, reliance on the UN Human Rights Committee finding in Bhinder v Canada in Prince v South Africa ((2004) AHRLR 105 (ACHPR 2004), para. 42).

14. See, for example, General Comment 25 of the Human Rights Committee referred to in Mouvement Ivoirien des Droits Humains (MIDH) v Côte d'Ivoire ((ii) (2008) AHRLR 75 (ACHPR 2008), para. 78).

15. See, for example, reliance in SERAC v Nigeria ((2001) AHRLR 60 (ACHPR 2001) (Ogoniland case)).

16. See, for example, reliance in SERAC v Nigeria ((2001) AHRLR 60 (ACHPR 2001) (Ogoniland case)).

17. See, for example, Communication 276/2003, Centre for Minority Rights Development (CEMIRIDE) (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya.

18. See, for example, Communication 276/2003, Centre for Minority Rights Development (CEMIRIDE) (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya.

19. OAU Refugee Convention, art. I(2).

20. Oloka-Onyango J ‘The plight of the larger half: Human rights, gender violence and the legal status of refugee and internally displaced women in Africa’, Denver Journal of International Law and Policy, 24, 1996, pp. 349, 364.

21. OAU Doc CAB/LEG/24.9/49(1990); adopted 11 July 1990; entered into force 29 November 1999.

22. See generally Viljoen F ‘The African Charter on the Rights and Welfare of the Child’, in Davel CJ (ed.), Introduction to Child Law in South Africa. Cape Town: Juta, 2000, pp. 214–31.

23. Barsh R ‘The Draft Convention on the Rights of the Child: A case of Eurocentrism in standard setting’, Nordic Journal of International Law, 58, 1989, p. 24 (citing the fact that only three African states participated for at least five of the nine years that the working group took to draft a final proposal).

24. See LeBlanc LJ The Convention on the Rights of the Child. Lincoln: University of Nebraska Press, 1995, p. 30.

25. See Viljoen F ‘Supra-national human rights instruments for the protection of children in Africa: The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child’, CILSA, 199, 31, 1998, pp. 207–11.

26. Arts 38(2) and 38(3) of CRC.

27. Art. 22(2) of African Children's Charter.

28. Art. 21(2) of African Children's Charter.

29. Art. 23(4) of African Children's Charter.

30. Art. 22 of CRC.

31. It may be argued that the differences between the protocol and CEDAW are more apparent than real, because the CEDAW Committee has in general comments, resolutions, concluding observations and findings expanded the scope of the relevant treaties. However, even if these clarifications have considerable persuasive weight, they do not constitute binding obligations. By making those ‘clarifications’ unequivocally binding and by supplementing them, the Women's Protocol takes an undeniable normative step forward.

32. Art. 14(2)(c) of the Protocol requires states to authorise abortion in cases of sexual assault, rape, incest, and where a continued pregnancy threatens the health of the mother or the life of the foetus.

33. Under art. 14(1)(d) of the Protocol states have to ensure that women are protected against sexually-transmitted diseases, including HIV/AIDS, and art. 14(1)(e) requires that states ensure that women are informed of the HIV status of their partners ‘in accordance with internationally recognized standards’.

34. Art. 6(c) of the African Women's Protocol, (the rights of women in polygamous marital relationships must be promoted and protected). In previous drafts, polygamy was totally outlawed; in the final Protocol a watered-down compromise was adopted, allowing polygamy to persist, with a guarantee of women's protection, combined with an ‘encouragement’ of monogamy as the preferred form of marriage.

35. Art. 11 of African Women's Protocol.

36. Art. 11(3) of African Women's Protocol.

37. Art. 11(4) of African Women's Protocol.

38. Art. 6(b) and (d) of African Women's Protocol.

39. See, for example, Murray R and F Viljoen ‘Towards non-discrimination on the basis of sexual orientation: The normative basis and procedural possibilities before the African Commission on Human and Peoples’ Rights and the African Union’, Human Rights Quarterly, 29, 1, 2007, pp. 86–111.

40. This NGO is Alternatives-Cameroun.

41. AU Assembly 15th ordinary session, 25–27 July 2010, Kampala, Uganda, ‘Decision on the Promotion of Cooperation, Dialogue and respect for Diversity in the field of human rights’, AU Doc. Assembly/AU/17(XV) Add. 9, para. 4.

42. AU Doc Assembly/AU/ Decl.1(XVI), Declaration on the theme of the Summit: ‘Towards greater unity and integration through shared values’.

43. Herbst J ‘Crafting regional cooperation in Africa’, in Acharya A & AI Johnston (eds), Crafting Cooperation. Regional International Institutions in Comparative Perspective. Cambridge: Cambridge University Press, 2007, pp. 129–44.

44. The percentage of African states that has ratified CRC stands at 98%; CEDAW at 96%; ICCPR at 94%; CERD at 92%; and ICESCR at 91%.

45. The difference is insignificant, and is due to the non-ratification of Somalia.

46. In respect of ICCPR, for example, the comparative rates are: 94% of all African states have ratified, as against 80% of states world-wide. For the Convention on Migrant Workers, the African ratification percentage stands at 28.3 %, while the global percentage is 22.9%.

47. In respect of the Convention on the Rights of Persons with Disabilities, the international achievement of 50% ratification is not equalled by African states, who stand at 45.3%. Similarly, in respect of the Convention on Enforced Disappearances, Africa trails slightly: world-wide ratification percentage is 10.4%, while for Africa it is 7.5%.

48. Hathaway OA ‘Do human rights treaties make a difference?’ Yale Law Journal, 111, 2002, p. 1935.

49. For example: Cameroon became a party to OP I in 1984; the DRC in 1976; Madagascar in 1971; Mauritius in 1973; Senegal in 1978 and Zambia in 1984.

50. In respect of women's rights, it should be noted further that the subregional SADC Protocol had been ratified by even fewer states (three out of 14 (Mozambique, Namibia and Zimbabwe), or 21%).

51. See, for example, Simmons BA Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press, 2009, e.g. p. 32.

52. For an application of the concept of ‘failure of design’ and ‘designed for failure’, see, for example, Barnett M & E Solingen ‘Designed to fail or failure of design? The origins and legacy of the Arab League’, in Acharya A & AI Johnston (eds) Crafting Cooperation. Regional International Institutions in Comparative Perspective. Cambridge: Cambridge University Press, 2007, pp. 180–220 at e.g. p. 182.

53. See, for example, Kufuor KO The African Human Rights System. Origin and Evolution. New York: Palgrave Macmillan, 2010, pp. 33–35.

54. Most recently, at the January 2011 meeting, see EX.CL/Dec.639(XVIII), Decision on the Activity Report of the African Commission on Human and Peoples’ Rights, in which the Executive Council refused to authorise publication of the report, and called in the African Commission to ‘engage concerned Member States in the verification of the facts and resubmit its report to the 19th Ordinary Session of the Executive Council’ (para. 6).

55. See, for example, Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998).

56. See art. 5 of the AU Constitutive Act (the ‘Commission’ mentioned there is the AU Commission).

57. For the situation by 2009, see Viljoen F ‘The African Charter on the Rights and Welfare of the Child’, in Boezaart T (ed.), Child Law in South Africa. Cape Town: Juta, 2009, pp. 331–50 at pp. 344–45. Some positive developments have taken place more recently, see, for example, Sloth-Nielsen J & BD Mezmur ‘Like running on a treadmill? The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child’, African Human Rights Law Journal, 10, 2010, p. 534.

58. This debate was kindled when the Security Council referred the matter of Sudanese President Al-Bashir to the ICC in respect of crimes against humanity, war crimes and genocide allegedly committed in Darfur in 2003 and 2004, and when the ICC Prosecutor decided of his own accord to investigate the situation in Kenya after the 2008 post-electoral violence. At the formal level, the AU and UN as IOs are not involved in these disputes, because the ICC is not a UN institution. The disagreement may thus be construed as one between the Prosecutor of the International Criminal Court and the African state parties to the ICC Statute. However, institutionally, the dispute has manifested itself in the relationship between the highest organs of the UN and AU. It is indeed the UN Security Council that, in accordance with the ICC Statute, mandated the Al-Bashir prosecution.

59. Akande D, M Du Plessis & CC Jalloh ‘An African expert study on the African Union concerns about article 16 of the Rome State of the ICC’, accessed 15 February 2011, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1698839>. When the UNSC did not engage seriously with this request, the AU took the unequivocal position of not cooperating with ICC and calling on states not to do so. The AU's efforts are also directed at an amendment of article 16, to allow the UN General Assembly to take decisions on the deferral of ICC investigations and prosecutions. In fact, it underscored the need for AU state parties to the ICC ‘to speak with one voice during the forthcoming negotiations at the level of the New York and The Hague Working Groups’ (Decision on the implementation of the decisions on the International Criminal Court, AU Doc Assembly/AU/Dec.334 (XVI), para. 9) on this issue.

60. See status of ratification, <http://www.au.int/en/treaties/status> (accessed 30 April 2011).

61. These states have made declarations under art. 34(6) of the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights. Declarations on file with author.

62. See, for example, article 24(3) Protocol and Rules of Procedures of the SADC Tribunal: ‘Decisions and rulings of the Tribunal shall be final and binding.’

63. Case no. 2/2008, judgment of 28 November 2008; 2008 AHRLR 199 (SADC 2008).

64. Art. 4(c) of the SADC Treaty.

65. Art. 6(2) of the SADC Treaty.

66. Manneh v The Gambia, Community Court of Justice of the Economic Community of West African States (ECOWA), suit ECW/CCJ/APP/04/07, judgment ECW/CCJ/JUD/03/08, 5 June 2008; (2008) AHRLR 171 (ECOWAS 2008).

67. See, for example, Article 19, ‘Gambia: Freedom of Information and Access to Information’, statement dated 18 May 2009, accessed 30 April 2011, <http://www.article19.org/pdfs/conferences/gambia-freedom-of-information-and-access-to-information.pdf>, and ‘President Jammeh asked to clarify Manneh's death’, The Daily News, 23 March 2011, accessed 30 April 2011, <http://dailynews.gm/africa/gambia/article/president-jammeh-asked-to-clarify-mannehs-death>.

68. Article 77 of the ECOWAS Treaty.

69. ACHPR/Res.134 (XXXXIIII) 08: Resolution on the Human Rights Situation in the Republic of the Gambia.

70. ACHPR/Res.134 (XXXXIIII) 08: Resolution on the Human Rights Situation in the Republic of the Gambia.

71. See, for example, Report of the Working Group on the Universal Periodic Review Libyan Arab Jamahiriya, (UN Doc A/HRC/14/15, 4 January 2011) para. 29: ‘Algeria noted the efforts of the Libyan Arab Jamahiriya to promote human rights, which reflected the country's commitment to complying with Human Rights Council resolutions and cooperating with the international community. Algeria welcomed the national institutional framework that had been set up, in particular the National Human Rights Committee. It noted that the country had made some progress in the area of education, as well as social and economic progress since the lifting of economic sanctions. It also noted the challenge of increased illegal immigration.’ Also para. 38: ‘Tunisia welcomed the national report, as well as the efforts of the National Committee, such as the website created to gather contributions. Tunisia noted progress made by the Libyan Arab Jamahiriya, such as the adoption of the Great Green Charter, which was very comprehensive and enshrined fundamental freedoms and rights as enshrined in international human rights instruments’.

72. Algeria, Angola, Benin, Burkina Faso, Cameroon, Djibouti, Egypt, Ethiopia, Gabon, Ghana, Kenya, Lesotho, Malawi, Mali, Mauritania, Mauritius, Mozambique, Nigeria, Republic of Congo, Rwanda, Sao Tome & Principe, Senegal, Sierra Leone, South Africa, Sudan, Tanzania, Togo, Uganda and Zambia. NEPAD is thus nested within the AU, while the smaller group of states subscribing to the APRM is embedded within NEPAD.

73. Consider Eritrea: under the UPR, a few countries mentioned and made recommendations in respect of detention without trial of political prisoners and journalists. However, no mention was made of the African Commission's finding in this regard.

74. See NEPAD Doc Declaration on Democracy, Political, Economic and Corporate Governance (2002), at para. 4: ‘We, member states parties to the aforementioned [African] instruments, reaffirm our full an continuing commitment to these and other decisions of our continental organisation, as well as the other international obligations and undertakings into which we have entered in the context of the United Nations’ (emphasis added).

75. See, for example, Viljoen F International Human Rights Law in Africa. Oxford: Oxford University Press, 2007, p. 142.

76. See, for example, ibid., p. 123.

77. African Commission Doc ACHPR/RES.181(EXT.OS/IX) 2011: Resolution on the Human Rights Situation in the Great Socialist Peoples’ Libyan Arab Jamahiriya, inviting ‘the Government of the Great Socialist Peoples’ Libyan Arab Jamahiriya to put an immediate end to the acts of violence and to all the forms of suppression perpetrated against the population and the destruction of property’.

78. African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v Great Libyan People's Arab Jamahiriya, Application no. 004/2011, Order for Provisional Measures, 25 March 2011.

79. In both systems, there is a Special Rapporteur on the situation of human rights defenders and a Special Rapporteur on freedom of expression.

80. Mechanisms corresponding but not entirely overlapping include: the UN Special Rapporteur on the human rights of internally displaced persons and the African Commission's Special Rapporteur for Refugees, Returnees, IDPs and Asylum Seekers; the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the African Commission's Committee against Torture; the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, the UN Expert Mechanism on the Rights of Indigenous Peoples and the African Commission's Working Group on Indigenous Communities; the UN Working Group on the issue of discrimination against women in law and in practice, the UN Special Rapporteur on violence against women, its causes and consequences and the African Commission's Special Rapporteur on the Rights of Women in Africa.

81. A number of different mechanisms may for example visit the same country, or impact on the same situation, thereby reinforcing each others’ efforts. In Cameroon, for example, both the UN Special Rapporteur on Torture and the African Commission's Special Rapporteur on Prisons and Conditions of Detention visited prisons in 1999 and 2002 respectively; in addition, Cameroon over that period reported to the Human Rights Committee, the CAT Committee and was targeted by the UN's Working Group on Arbitrary Detention.

82. Art. 3(1) of the Protocol on the African Human Rights Court provides that the jurisdiction of the Court extends to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the states concerned’ (emphasis added).

83. For example, the African Court may decide that the right a statute criminalising consensual same-sex relations does not violate the right to privacy under the ICCPR, thus contradicting the Human Rights Committee's finding in Toonen v Australia (Communication no. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994)).

84. Communication no. 181/2001, Guengueng v Senegal, (2006) AHRLR 56 (CAT, 2006).

85. AU Doc Assembly/AU/Dec.127 (VII), Decision on the Hissène Habré case and the African Union.

86. Yogogombaye v Senegal, Application 1/2008, 15 December 2009.

87. Hissène Habré v Senegal, No. ECW/CCJ/APP/07/08, Case no. ECW/CCJ/JUD/06/10, 18 November 2010. It is noticeable that the Court places its main reliance on the Universal Declaration and the African Charter.

88. Art. 56(7) of the African Charter. However, a literal interpretation of this provision may see the ECOWAS Court excluded from the procedures under which the prior settlement should have been reached.

89. Assembly/AU/Dec.340 (XVI), Decision on the Hissène Habré case.