- Adopted by the Eighteenth Assembly of Heads of State and Government of the Organisation of African Unity (OAU) at Nairobi in July 1981, entered into force on 21 October 1986, (1982) 21 ILM 58. See GJ Naldi (ed) Documents of the Organization of African Unity (1992) 109. All of the OAU's fifty-three Member States have now ratified the Charter, see R Murray ‘Africa’ (1999) 17 NQHR 350. For an analysis of the Charter, see EA Ankumah The African Commission on Human and Peoples' Rights (1996) 111–177; GJ Naldi The Organization of African Unity 2ed (1999) 109–212; UO Umozurike The African Charter on Human and Peoples' Rights (1997); E Bello ‘The African Charter on Human and Peoples' Rights’ (1985/86) 194 Hague Recueil 13; RM D'Sa ‘The African Charter on Human and Peoples' Rights: Problems and Prospects for Regional Action’ (1981/83) 10 Australian Yearbook of International Law 101.
- The Charter has been described as ‘modest in its objectives and flexible in its means’. BO Okere ‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems’ (1984) 6 Human Rights Quarterly 141, 158. For other sceptical assessments, see R Gittleman ‘The African Charter on Human and Peoples' Rights: A Legal Analysis’ (1982) 22 Virginia J of International L 667; P Amoah, ‘The African Charter on Human and Peoples' Rights — An Effective Weapon for Human Rights?’ (1992) RADIC 226: G Robertson. Crimes Against Humanity (1999) 57–58.
- D'Sa (note 1 above) 107–8; Gittleman (note 2 above) 685. CA Odinkalu ‘The Individual Complaints Procedures of the African Commission on Human and Peoples' Rights: A Preliminary Assessment’ (1998) 8 Transnational L & Contemporary Problems 359, 398 however expresses little concern, as he believes that the African Commission on Human and Peoples' Rights has been addressing this problem through its procedures and jurisprudence.
- R Higgins ‘Derogations under Human Rights Treaties’ (1976–77) 48 BYIL 281.
- It is interesting to note that, unlike other similar human rights treaties, the Charter does not contain a derogation clause that permits the suspension of certain rights and freedoms in strictly defined circumstances. See R Murray The African Commission on Human and Peoples' Rights and International Law (2000) 123–26 and generally DJ Harris, M O'Boyle & C Warbrick Law of the European Convention on Human Rights (1995) 489–506. Thus, in Commission Nationale des Droits de l'Homme et des Libertés v Chad Communication No 74/92 (1997) 4 IHRR 94 (state of civil war led to serious and massive violations of human rights, including rights to life, prohibition of torture, inhuman and degrading treatment, and liberty and security of the person) para 21 the Commission observed that the Charter ‘does not allow for States Parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter.’ Moreover, the Commission stated that the lack of a derogation clause ‘can be seen as an expression of the principle that the restriction of human rights is not a solution to national difficulties: the legitimate exercise of human rights does not pose dangers to a democratic state governed by the rule of law’. Amnesty International and Others v Sudan Communication Nos 48/90, 50/91, 52/91 and 89/93, Thirteenth Annual Activity Report 1999–2000 (arrest and detention without trial, acts of physical abuse, and oppression of non-Muslims violated the rights to liberty and security of the person, the prohibition on torture, and freedom of religion amongst others) para 79. See also Media Rights Agenda and Constitutional Rights Project V Nigeria Communication Nos 105/93, 128/94, 130/94 and 152/96 (2000) 7 IHRR 265 (proscription and seizure of publications violated freedom of expression and the prohibition on retroactive laws) para 67.
- See also the following clauses of the Charter: arts 10(2); 6 (the right to liberty); 9(2) (guaranteeing freedom of expression ‘within the law’) 12(1) and (3) (freedom of movement); 13(1) (the right to participate in government ‘in accordance with the provisions of the law’) and 14 (the right to property). Only in relation to arts 11 (guaranteeing the right of assembly ‘subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety of others, health, ethics and rights and freedoms of others’) and 12(2) (securing freedom of movement ‘subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality’) does it seem appropriate to draw an analogy with the limitations contained in the European Convention on Human Rights since these are strictly defined and are only permitted subject to stringent criteria. See Harris, O'Boyle & Warbrick (note 5 above) 285–301. However, the wording of art 11 has been criticised because it ‘has the weakness of permitting suspension of this right in a wide range of circumstances, each one of which is left undefined’. RM D'Sa ‘Human and Peoples’ Rights: Distinctive Features of the African Charter’ (1985) 29 Journal of African Law 72, 76. See further Gittleman (note 2 above) 692–700.
- Robertson (note 2 above) 57–58; Ankumah (note 1 above) 176–77; R Higgins Problems and Process: International Law and How We Use It (1995) 106; D'Sa (note 6 above) 375–76; D'Sa (note 1 above) 109–111; Gittleman (note 2 above) 691–692; P Kunig ‘The Protection of Human Rights by International Law in Africa’ (1982) 25 German Yearbook of International L 138, 155. Umozurike (note 1 above) chapter 3, who is less critical, divides the Charter's civil and political rights into ‘unrestricted’ and ‘restricted’ rights. See also UO Umozurike ‘The Protection of Human Rights under the Banjul (African) Charter on Human and Peoples' Rights' (1988) 1 African J of International L 65, 68. However, it is encouraging to note that the Commission has interpreted this provision creatively, stating that there is a duty on the State ‘to abstain from interfering with the free formation of associations’, and that ‘there must always be a general capacity for citizens to join, without State interference, in associations in order to attain various ends' Civil Liberties Organization in respect of Nigerian Bar Association v Nigeria Communication No 101/93 84th Annual Activity Report http://www1.umn.edu/humanrts/africa/ACHPR1.htm (retrospective establishment of a new governing body, the Nigerian Bar Association, which could not be challenged by law, violated the rights to liberty and security of the person, a fair trial and freedom of association) para 14.
- Gittleman (note 2 above) 692.
- Bello (note 1 above) 70.
- Ankumah (note 1 above) 176.
- D'Sa (note 1 above) 110.
- Gittleman (note 2 above) 694.
- Kunig (note 7 above) 155.
- Murray (note 5 above) 127.
- Articles 30 and 45 of the Charter. Ankumah (note 1 above) 8 prefers to describe the Commission as a ‘supervisory institution’. Its decisions do not formally have the binding force of a court ruling, but have a persuasive authority akin to the opinions of the UN Human Rights Committee. See art 59 of the Charter and rule 120 of the Commission's Rules of Procedure as amended (1997) 18 HRLJ 154; Ankumah (note 1 above) 24, 74–75; D'Sa (note 1 above) 126. R Murray ‘Decisions by the African Commission on Individual Communications under the African Charter on Human and Peoples' Rights’ (1997) 46 ICLQ 412, 428 writes that these provisions have nevertheless enabled the Commission to declare that there have been violations of the Charter. An expectation of compliance appears to have been engendered and it would seem that the Commission has come to regard its decisions on communications as binding. See International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria Communication Nos 137/94, 139/94, 154/96 and 161/97 (2000) 7 IHRR 274, paras 113–16 (arrest, detention, trial and execution of individuals found to constitute multiple violations of the Charter); and Murray (this note) 431.
- Articles 47–54 of the Charter.
- Articles 55–59 of the Charter, although as Odinkalu (note 3 above) 371 has observed, the infelicitous wording of art 55 has led some to question whether the Commission had the capacity to receive individual communications. However, this procedure is expressly authorised under Chapter XVII of the Commission's Rules of Procedure (1997) 18 HRLJ 154, and is in any case well established in the Commission's practice. According to the Commission, the main aim of this procedure is ‘to initiate a positive dialogue, resulting in an amicable resolution… which remedies the prejudice complained of. A prerequisite for amicably remedying violations of the Charter is the good faith of the parties concerned, including their willingness to participate in a dialogue.’ Free Legal Assistance Group v Zaire Communication No 25/89, (1997) IHRR 89 para 39. See further Odinkalu (note 3 above) 374–78. A State reporting procedure is also required under art 62. See also Ankumah (note 1 above) 20–28, 51–77, 79–110; Murray (note 5 above) 17–18; Naldi The Organization of African Unity (note 1 above) 139–47; C Anyangwe ‘Obligations of States Parties to the African Charter on Human and Peoples' Rights’ (1998) 10 RADIC 625, 637–42.
- See, for example, Robertson (note 2 above) 58–59; KO Kufuor ‘Safeguarding Human Rights: A Critique of the African Commission on Human and Peoples' Rights’ (1993) 18 Africa Development 65, 74; Z Motala ‘Human Rights in Africa: A Cultural, Ideological, and Legal Examination’ (1989) 12 Hastings International and Comparative LR 373, 405. M Wa Mutua ‘The African Human Rights System in Comparative Perspective’ (1993) Review of the African Commission on Human and Peoples' Rights 5, 11 thus describes the Commission as ‘a facade, a yoke that African leaders have put around our necks’. J Oloka-Onyango ‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa’ (1995) 26 California Western International LJ 1, 52–56 though not as critical, is also unimpressed. See also Amoah (note 2 above) 232–37; CE Welch, Jr ‘The African Commission on Human and Peoples' Rights: A Five-Year Report and Assessment’ (1992) 14 Human Rights Quarterly 43. For more favourable assessments, see Umozurike (note 1 above) 67–85; Murray (note 5 above). While acknowledging its failings, Ankumah (note 1 above) 9, 179–98 is nevertheless of the view that the Commission has the potential to become an effective body. Odinkalu (note 3 above) 401–402 writes that ‘any conclusions… about the work of the Commission… must remain tentative and probably lie somewhere between the extremes of opinion’, but ‘that any temptation to dismiss it as a worthless institution today must be regarded as premature, ill-informed, or both.’ Lack of an effective remedy has been identified as a particular deficiency. Kufuor (above) 71–74. However, as has been noted in Free Legal Assistance Group v Zaire (above), the Commission has stated that one of its principal objectives is to remedy ‘the prejudice complained of. Hence Odinkalu (above) 374 comments that the ‘Commission thus recognizes that the bottom line of the communications procedure is the redress of the violations complained of.
- Murray (note 5 above) 127.
- This had already been suggested by the Commission's Guidelines for National Periodic Reports (see Naldi Documents of the Organization of African Unity (note 1 above) 155–56), which requires States, amongst other things, to provide information on any restrictions or limitations imposed on rights and fundamental freedoms. Governments should avoid restricting rights, and have special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights. In fact, general restrictions on rights diminish public confidence in the rule of law and are often counter-productive.23
- According to Article 9(2) of the Charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express and disseminate one's opinions; this would make the protection of the right to express one's opinions ineffective. To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.
- In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.
- The only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27(2), that is that the rights of the Charter ‘shall be exercised with due regard to the rights of others, collective security, morality and common interest.’24
- The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained.25
- Note 7 above. This statement was quoted verbatim in Constitutional Rights Project and Civil Liberties Organisation v Nigeria Communication No 102/93 (2000) 7 IH RR 259 (annulment of election results, arrest and detention of protestors and the seizure of magazines violated the rights to participate freely in the government of the country and to determine political status, liberty and security of the person, and freedom of expression) para 57.
- Note 5 above.
- This statement was quoted verbatim from Constitutional Rights Project and Civil Liberties Organisation v Nigeria (note 21 above) para 58. The respondent Government justified its actions by reference to a ‘chaotic situation’, see paras 10, 57.
- See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria Communication Nos 140/94, 141/94 and 145/95, Thirteenth Annual Activity Report 1999–2000 (the nullification of legal proceedings, the proscription and seizure of publications, physical attacks on individuals and property, and detention without charge violated the rights to a fair trial, freedom of expression, property, dignity, and liberty and security of the person) para 41.
- See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (note 24 above) para 42.
- Ibid.
- Media Rights Agenda and Constitutional Rights Project v Nigeria (note 5 above) paras 65–71. See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (note 24 above) para 43.
- Ibid para 71. See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (note 24 above) para 44.
- Communication No 212/98 (2000) 7 IHRR 286.
- Ibid para 42.
- Thus, in Amnesty International v Mauritania Communication No 61/91, Thirteenth Annual Activity Report 1999–2000 para 102, the Commission stated in relation to art 9(2) of the Charter that ‘[t]he expression within the laws must be interpreted as reference to the international norms.’ See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (note 24 above) paras 39–40; Sir Dawda v Jawara v Gambia Communication Nos 147/95 and 149/96, Thirteenth Annual Activity Report 1999–2000 (assumption of power by a military government constituted multiple violations of rights in the Charter, including freedom of expression, freedom of assembly, the right to determine freely political status, and the independence of the judiciary) para 49. See also, for example, the requirement of the European Court of Human Rights that domestic law must be compatible with the rule of law, Silver v United Kingdom (1983) ECHR Series A vol 61 (censorship of prisoner's correspondence necessary but others a violation of the right to privacy) para 90.
- Civil Liberties Organisation v Nigeria Communication No 129/94 (1997) 18 HRLJ 35 (ouster of the jurisdiction of the courts a violation of the right to be heard and of the independence of the judiciary). See further Anyangwe (note 17 above) 625.
- Sir Dawda K Jawara v Gambia (note 31 above) paras 43 and 58–59 where the Commission interestingly also invoked its Resolution on the Right to Freedom of Association to the same effect.
- See also Sunday Times v United Kingdom (1979) ECHR Series A vol 30 (finding of contempt of court against newspaper a violation of freedom of expression) para 49; Malone v United Kingdom (1984) ECHR Series A vol 82 (wiretapping of telephone conversations violates the right to privacy) para 68; Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (IACHR) (1985) 7 HRLJ 74 (compulsory membership of an association a violation of the right to freedom of expression) para 40. It is therefore interesting to note that a retrospective law depriving a person of his freedom constituted, amongst other things, a violation of art 6.4 Civil Liberties Organisation in respect of Nigerian Bar Association v Nigeria (note 7 above). Similarly, the Commission has held that art 12(4) of the Charter prohibits the arbitrary expulsion of asylum seekers. Organisation Mondiale Centre La Torture and the Association Internationale des Juristes Democrates and Others v Rwanda Communication Nos 27/89, 46/91, 49/91, and 99/93 (1999) 6 IHRR 816 para 30.
- Amnesty International v Mauritania (note 31 above) para 107.
- Note 5 above, para 59.
- See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria (note 24 above) para 54. See, however, the balancing test under the European Convention on Human Rights set out in Klass v Germany (1978) ECHR Series A vol 28 (wiretapping subject to strict administrative procedures not incompatible with right to privacy) para 59.
- Naldi Documents of the Organization of African Unity (note 1 above) 174.
- See also Silver v United Kingdom (note 31 above).
- See also Sir Dawda K Jawara v Gambia (note 31 above) para 68 and Amnesty International and Others v Sudan (note 5 above) para 80, where the Commission held that a blanket restriction on freedom of expression violated art 9(2) of the Charter. Furthermore, a general prohibition on the right to associate in all places was found to be disproportionate to the maintenance of public order, security and safety and consequently a breach of art 10(1) of the Charter. Ibid para 82.
- See P van Dijk and GJH van Hoof Theory and Practice of the European Convention on Human Rights 2 ed (1990) 575–578.
- See also Amnesty International and Others v Sudan (note 5 above) para 82. Cf Sunday Times v United Kingdom (note 34 above); Handyside v United Kingdom (1976) ECHR Series A vol 24 (prohibition on sexually explicit publication aimed at children consistent with limitations on freedom of expression); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (note 34 above) para 46.
- Communication Nos 143/95, 150/96, Thirteenth Annual Activity Report 1999–2000, para 33.
- This corresponds with the position adopted by the European Court of Human Rights (see, for example, Olsson v Sweden (No 1) (1988) ECHR Series A vol 130; and Observer and Guardian v United Kingdom (1991) ECHR Series A vol 216), as well as by the UN Human Rights Committee under the International Covenant on Civil and Political Rights (see D McGoldrick The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1994) 150).
- Note 29 above, para 42. See also Media Rights Agenda and Constitutional Rights Project v Nigeria (note 5 above) para 71.
- Note 17 above.
- Ibid para 45.
- Note 31 above, paras 107, 111.
- The Commission has thus observed that ‘[a] basic premise of international human rights law is that certain standards must be constant across national borders, and governments must be held accountable to these standards’, Constitutional Rights Project and Civil Liberties Organisation v Nigeria (note 21 above) para 48.
- Murray (note 5 above) 127.
- See, for example, Organisation Mondiale Contre La Torture and the Association Internationale des Juristes Democrates and Others v Rwanda (note 34 above); Media Rights Agenda and Constitutional Rights Project v Nigeria (note 5 above); International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v Nigeria (note 15 above). See further Murray (note 15 above) 428–432.
- Odinkalu (note 3 above) 402.
- Ibid 398.
- I am grateful to Chidi Odinkalu for providing me with a copy of the Thirteenth Annual Activity Report of the African Commission on Human and Peoples' Rights 1999–2000.
South African Journal on Human Rights
Volume 17, 2001 - Issue 1