Chapter 6: Regional Protection of Human Rights: African and American Mechanisms

The Protection of Human Rights on the African Continent

The African Charter was adopted in 1981 by the then operative The Organization of African Unity. The Charter entered into effect in 1986. The Charter displays some distinctive features that are lacking in other similar human-rights-related conventions. That the Charter instructs not only human rights but also peoples’ rights is one the most striking of these distinctive features. In addition, the Charter has some regulations on the obligations of persons. The main reason for this rather unusual regulation is the African understanding of human rights which is the backbone of the Charter.

According to this, rights and obligations are two inseparable spheres of the same reality. In the light of this distinct understanding one should be taken by the surprise by this rather innovative approach, which was strikingly not adopted on the American Continent.

A special system was created by the African Charter with a view to protecting and championing the idea of human rights. At the beginning this system was envisioned to be functioning within the structure of the Organization of African Unity (OAU). However, this organization was then disbanded and African Union would be its replacement.

1960’s was an era of decolonization. Many peoples having suffered from the rampant imperialism and colonialism were keen on the idea of establishing their own states. OAU was the political outcome of this larger trend and was founded in 1963 by those recently established African States. Addis Ababa was the seat of OAU.

In 2002, the OAU was annulled and African Union was established. The Commission established by the African Charter and in the same manner entrusted with human rights related tasks continued to discharge its tasks within the AU. The Charter consists of economic, social, cultural rights as well as those civil and political rights. One of the distinctive features of the Charter is that it includes some those rights that are called ‘third generation human rights’, which are specifically named by the Charter as ‘the peoples’ rights’. According to the first Article of the African Charter, States parties thereto pledge to recognize the rights, duties and freedoms set forth therein and undertake to take all measures related to legislation or of other nature, with a view to increasing the effectivity of the Charter. The second Article comes up with a serious non-discrimination clause.

According to this Article ‘(e) very individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.’

The civil and political rights are to be found between the third and the sixteenth Articles of the Charter. Article 3 foresees the equality before the law principle. Article 4 explicitly states that ‘Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right’, whereas.

Article 5 stresses the human dignity. Article 5 also prohibits all kinds of exploitation, degrading and inhuman punishments and treatments. Article 6 of the Charter bans arbitrary detention and arrest. Right to fair trial and that ever-significant presumption of innocence are among the rights and freedoms touched upon by the 7th Article of the Charter. Freedom of religion and conscience, right to assembly and right to property are among other classical rights enshrined in the mentioned section of the Charter. Article 8 expressis verbis deals with the freedom of religion and conscience.

The African Charter does not have any designated Article that solely aims to regulate the suspension or limitation of human rights. What is meant by this is that the Charter does not include a specific regulation to this end and consequently it is utterly devoid of any general suspension or derivation grounds, which might have been applicable for all the enshrined rights in the wake of predetermined emergencies or hardships like war, national emergency or national security.

The lack of such a restraining regulation seems, at the first glance, like a positive development in favor of human rights enjoyment of which shall not be hampered by general derivation clauses. However, a further look leads to alarming outcomes. Innate to almost each and every rights enshrined in the Charter is an ambivalent language which may by design or inadvertently pave the way for limiting interpretations and/or enforcement.

One of these Articles that may give rise to a rather restrictive implementation of the legal undertakings in the Charter is Article 9 according to which, ‘every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.’ This Article limits the freedom of expression and dissemination of opinions by a simple reference to law, which at the end of the day may mean that the legislature has the means to curb this freedom to a great extent when it deems necessary.

In addition to this, there is another deficient part in this regulation, which is the total lack of any attempt to delineate a minimum level of human rights that this law should observe to uphold and preserve as a minimum, even in those times where state might deem it an absolute necessity to restrict this freedom. Since no limitation was imposed upon the authority the government has in deviating from its legal obligations emanating from the chapter, the States Parties may at will violate human rights, solely by enacting basic codes, which may be violating these rules excessively.

Article 11 has an interesting regulation in this regard. According to this Article: ‘Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the Safety, health, ethics and rights and freedom of others.’ The right to assembly can only be restricted if and when that restriction is called upon by the real vicissitudes happening in that society.

Article 17 of the African Charter explicitly refers to the right to education and right to a free participation in the cultural life of her community. Article 18 describes the family as the ‘natural unit and basis of society’. In harmony with this view of the family, the Article defines a number of legal obligations for the State Party. The very first one of these is a blanket task of protecting the family.

As a natural outcome of this wide task, the State is entrusted with the undertaking to take care of its physical health and moral. The family which is prescribed to be the alleged ‘custodian or morals and traditional values recognized by the community’ has been given the right to ask for the assistance of the State. The protection of family is complemented in the same article by the envisioned protection of women, children, the elderly and the disabled.

Article 19 highlights the in an African setting important and sensitive matter of Peoples’ Equality. This equality is an equality on a communitarian level among different groups of peoples and should not be confused with personal equality. Domination of a group of people by another group is an unjustifiable act in the eyes of the drafters of the Charter. The Peoples may also ‘freely dispose of their wealth and natural resources (Article 21); and have the right to a general satisfactory environment favorable to their development’.

Article 22 of the African Charter states that ‘All peoples shall have the right 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’. Article 23 recognizes that ‘(a)ll peoples shall have the right to national and international peace and security’. Therefore, right to peace has been recognized not only on a national level but also on an international level.

The peace and security are defined rather expansively in this Article, for it does not solely refer to the text of the United Nations Charter. It surely refers to it and goes even beyond that. The right to peace and security has to be in conformity with ‘principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States’.

One of the distinctive features of the African Charter is that it has defined some concrete duties for the nationals of the States Parties to itself. Article 27 defines the duty of an individual towards one’s ‘family and society, the State and other legally recognized communities and the international community’.

Article 29 has an even wider list of duties meted out. From a pro-human rights stance, this list is a worrying one, not that it includes elements that are inherently detrimental for the human rights cause. What is worrying is that the general and rather sloppy language used in the definition of some so-called duties may be a tool in the hands of someone with a mind-set to abuse them.

Article 30 foresees the establishment of a Commission by stating ‘an African Commission on Human and Peoples’ Rights, hereinafter called “the Commission”, shall be established … to promote human and peoples’ rights and ensure their protection in Africa’. Another review system was later added to the Commission by virtue of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The mandate of this said Court is to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights, which is referred to as Banjul Commission.

The Commission consists of 11 members. These members are elected by the African Union Assembly. The Assembly considers equitable geographical and gender representation in electing the members of the Commission. Members of the Commission are elected for a six-year term and are eligible for reelection (The Commission Website). Given the delicate nature of their task, the members of the Commission are expected to preserve their independence from their own States. They are expected to discharge their obligations in their personal capacity and not as representatives of their respective countries.

As the Commission reminds, ‘(p)reviously, some members of the Commission held high political offices at the national level, which affects the Commission’s independence. The AU in April 2005 issued a note verbale to member states prescribing guidelines for nomination of members to the Commission which excluded senior civil servants and diplomatic representatives’. The mandate of the Commission stems from the 45th Article of the Charter. The Article offers a list of the obligations and responsibilities of the Commission. The functions of the Commission are listed on page 145 of your textbook.

Article 47 of the Charter sets forth that ‘if a State party to the present Charter has good reasons to believe that another State party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter.

The Article 49 of the African Charter kicks in when ‘a State party to the present Charter considers that another State party has violated the provisions of the Charter’. In this case, this State party may opt ‘to refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organization of African Unity and the State concerned’.

There are other actors allowed to submit a communication to the Commission by the 55th Article of the African Charter. The Charter does not offer any concrete and exhaustive listings of these subjects who have this authority. A communication shall be considered by the Commission if a simple majority of its members so decide. To reach this conclusion of admissibility regarding the communications submitted within the framework of Article 55, the following criteria listed in the 56th Article must be met.

According to Article 56, communications relating to human and peoples’ rights referred to in 55 received by the Commission shall be considered if they indicate their authors even if the latter request anonymity, if they are compatible with the Charter of the Organization of African Unity or with the present Charter, if they are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, if they are not based exclusively on news discriminated through the mass media, if they are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, if they are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and if they do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

The African Court on Human and Peoples’ Rights

The then-functioning Organization of African Unity (OAU) decided to establish a working group in 1994, the aim of which was to study the idea of the establishment of a Human Rights Court to prevent violations of human rights and to augment the protective mechanisms. This group remained active until 1998. Again in 1998 the OAU adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Protocol came into force on 25 January 2004. Following its entry into force, the first judges of the Court was elected in 2006 by the African Union. In the following year the Court assumed its work with its seat in Arusha, Tanzania, which is not the first seat of the Court however. The Court was originally established in Addis Ababa, Ethiopia in November 2006, but then moved to Arusha.

The Court is composed of 11 Judges, who are expected by the Protocol to have high moral values, high professional recognition and experience. It is another expectation of the Protocol that the nominations should be made from among such a group of individuals, who are either academically successful or who have great practice-oriented careers. The Protocol orders the judges of the Court be elected for a period of six years. These may be reelected only once.

It is the objective of the Court to complement the protective mandate of the African Commission on Human and Peoples’ Rights and fulfill its own function with a view to safeguarding human rights. The Court enjoys jurisdiction in all the cases submitted to it concerning the interpretation and application of the African Charter, the Protocol and any other relevant Human Rights instrument ratified by the States concerned. According to this 3rd Article of the Protocol, ‘In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide’.

Article 10 of the Protocol states that ‘The Court shall conduct its proceedings in public. The Court may, however, conduct proceedings in camera as may be provided for in the Rules of Procedure. Any party to a case shall be entitled to be represented by a legal representative of the party’s choice. Free legal representation may be provided where the interests of justice so require.’ Further, ‘Any person, witness or representative of the parties, who appears before the Court, shall enjoy protection and all facilities, in accordance with international law, necessary for the discharging of their functions, tasks and duties in relation to the Court.’

In relation to proceedings, Article 43 of the Rules of Court mentions that ‘Cases shall be heard in open court. However, the Court may, of its own accord or at the request of a party, hold its hearings in camera if, in its opinion, it is in the interest of public morality, safety or public order to do so. Whenever the Court orders that any proceedings shall not be conducted in public, the Court shall give one or more of the reasons specified… as the basis of its decision. The parties or their legal representatives shall be permitted to be present and heard in camera’.

In the light of this rule, the Court has to refer at least to one of the following: public morality, safety, and public order. Safety should be understood in a broad sense to include personal and public safety. At the end of the proceedings, the Court may render decisions that may point to violations of human rights. In this case, the Court is entitled to decide for any remedy for the violation that occurred including but not limited to the payment of fair compensation and expenses.’ In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary” (Art. 27 of the Protocol).

The Court’s main objective is to stop the occurring the violations of human rights, if any and to remedy the ones that have already been committed. In the case of a violation case, where there is extreme gravity and urgency and if there is a risk of irreparable harm to persons involved; the Court may adopt provisional measures.

Provisional measures are not final decisions but rather measures adopted to make possible the flawless running of affairs during the proceedings and related Court activities, which, among others, however also serve to protect human rights, for a provisional measure will hamper the otherwise unattended activities of the concerned member state and its organs and cause in all probability to suspend their relevant actions or omissions in the wake of the case’s referral to the Court. During this whole adjudicative task, ‘The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned’ (Art. 7, the Protocol).

Following the ending of the completion of the deliberations phase, the Court has a 90-day duration to render its decision. The fact that a duration was set to determine a deadline for every case presented, the parties to the Charter and the Protocol wanted obviously to avoid the bad experiences of the Commission-only period of the African Charter.

In preparing this decision, judges who were members of the specific panel that was responsible for the case will have to take part in deliberations. Other judges will not take part in these deliberations. The deliberations of the Court shall be held in camera and shall remain confidential. The decisions of the Court shall be made by a majority of the Members of the Panel present. In the case of a tied vote, the Presiding Judge shall have a casting vote, which means his/her vote will be the decisive vote to break the tie.

There is no other and further remedy to apply to against these Judgments. Essential parts of judgments have been determined by the 61st Article of the Rules of the Court: 1. Every judgment of the Court shall state the reasons on which it is based. 2. The judgment shall indicate the names of Judges who have taken part in the deliberations. 3. The judgment shall be signed by all the Judges and certified by the Presiding Judge and the Registrar. It shall be read in open Court, due notice having been given to the parties. 4. Subject to article 28(3) of the Protocol, the judgment of the Court shall be final. 5. The judgment of the Court shall be binding on the parties.

The Protection of Human Rights on American Continent

The Organization of American States (OAS) was established by the Charter of OAS signed in Bogota, Colombia in 30 April 1948. OAS determined as its main objective, to provide cooperation and coordination in different areas and to become a platform that gets its members to apply peaceful methods for the settlement of disputes among them. Article 3 of the Charter of OAS bearing the title of ‘The Principles’ affirms the principles of equality and nondiscrimination (among others) on an international level. International law is designated by the Charter as the standard-bearer of intrastate relations, and social justice, social security, economic cooperation are important factors for peace and prosperity.

The 3rd Article attaches significance to armed conflict and its prevention. According to this; ‘the American States condemn war of aggression: victory does not give rights. An act of aggression against one American State is an act of aggression against all the other American States. Controversies of an international character arising between two or more American States Parties shall be settled by peaceful procedures’.

Articles 20, 21 and 22 of the Charter of OAS refer in general terms to peace. The 20th Article states that ‘no State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from its advantages of any kind’. As can be seen, what is here forbidden is the intervention by States Parties in the affairs of the other ones. This regulation is in accordance with and augments the preceding Article 17 of the Article.

There is another text that should and will help us in finding out what their rights really may amount to. It is the ‘American Declaration of the Rights and Duties of Man’, signed on May 2, 1948, i.e. only two days after the signing of the Charter. The States Parties to the OAS Charter may well have found it wiser to delegate the important task of identifying the rights to the drafting committee of this declaration.

The 21st Article of the OAS Charter bans in explicit terms ‘military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever’ and adds that ‘no territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized’.

In the year 1959, steps were taken to establish an Inter American Human Rights Commission (IACHR). This was followed by the conclusion of the legal arrangements providing a mechanism for the operation of this IACHR in 1960 and thus the IACHR was established. The main objective of the Commission was to promote and protect human rights in the American hemisphere.

In November 1969, this Convention was adopted in San José, Costa Rica, where, the Inter- American Specialized Conference on Human Rights was held, in which the representatives of the member States of the OAS adopted it. It took a rather long time for this Convention to enter into force. This was only managed in 1978, when a member State deposited the eleventh document of ratification. The Convention is defined as the most important human rights treaty among the American States. It had an undeniable influence received from The European Convention on Human Rights.

The Convention aims to secure the respect for a high a number of civil and political rights. By imposing a wideranging obligation of antidiscrimination, it has strived to allow each and every individual to enjoy these rights. Further, the Convention defines it an obligation, to take progressive steps with a view to paving the way for the enjoyment of those rights enshrined in the Charter of OAS (as stipulated and further defined by the Declaration mentioned above). The regulations of Article 27 of the Convention are listed on page 154 of your textbook.

According to the Articles 44 and 45, any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party. The regulations of Article 45 are listed on page 154 of your textbook.

The Convention embarks on with an obligation to respect human rights and not to curb them on grounds reminiscent of or amounting to discrimination. According to Article 1, ‘The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons, subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.’

The Inter-American Court of Human Rights

The Court consists of seven members (judges) each elected by secret ballot for a duration of six years and may be reelected only once. The judges must be elected “in an individual capacity from among jurists of the highest moral authority and of recognized competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or of the state that proposes them as candidates” (Art.52).

According to the Convention, ‘no two judges may be nationals of the same state’. A judge elected to replace a judge whose term has not expired yet, has to complete the term of the latter (Art. 54). Only the States Parties to the Convention and the Commission shall have the right to submit a case to the Court. Article of the Convention which demands ‘that the procedures set forth in Articles 48 and 50 shall have been completed’. The regulations of Article 48 are listed on page 156 of your textbook.

Article 50 of the Convention, on the other hand, seeks that ‘If a settlement is not reached, the Commission shall, within the time limit established by its Statute, draw up a report setting forth the facts and stating its conclusions. If the report, in whole or in part, does not represent the unanimous agreement of the members of the Commission, any member may attach to it a separate opinion. The written and oral statements made by the parties in accordance with paragraph 1.e of Article 48 shall also be attached to the report. 2. The report shall be transmitted to the states concerned, which shall not be at liberty to publish it. 3. In transmitting the report, the Commission may make such proposals and recommendations as it sees fit.’

The brief containing the application of Article 61(1) of the Convention are listed on page 157 of your textbook. Article 62 of the Convention authorizes the States Parties to the Convention to ‘declare that (upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time) it recognizes as binding, ipso facto and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention’. Furthermore, ‘Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases’.

The Court has an obvious competence to offer its own interpretation of the Convention. In addition, the Court may be asked to interpret other legal sources about human rights in American States. The Rules of the Procedure are given on page 158 of your textbook.