UNIT THREE

REGIONAL AND INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS

3.0 INTERNATIONAL BILL OF RIGHTS

3. 1 INTRODUCTION

Mere enshrinement of the idea of human rights in the U. N. Charter was not adequate,
unless specific, concrete and effective steps are taken for its implementation and
observance, making it the legal obligation of the members. As noted in the previous unit,
the U. N. Charter suffers from two defects in this regard, first it does not contain an
International Bill of Rights and second the concept of human Rights has not been defined
properly. So the primary twin task before the United Nations was to formulate an effective
International Bill of Rights and enumerate the concept of Human Rights thoroughly so
that implementation of the principle of Human Rights can be done effectively. And as a
part of its commitment to ensure human rights to all irrespective of race, sex, language or
religion, the U.N. General Assembly referred the matter to the Economic and social
council which appointed the Commission on Human Rights (now human rights Council),
which became instrumental in the drafting of International Bill of Rights.

The international bill of rights consists of the Universal Declaration of Human Rights
(adopted in 1948), the International Covenant on Civil and Political Rights (1966)
with its two Optional Protocols and the International Covenant on Economic, Social
and Cultural Rights (1966). The two covenants entered into force in 1976, after a
sufficient number of countries had ratified them.

3.2 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) 1948

Owing to the influence of the human rights movement the general assembly of the United
Nations Organisation adopted the Universal declaration of human rights in 1948 (UDHR),
a document that spells out the universal nature of basic rights for all human beings. On
10th December 1948, the UN general assembly adopted the UDHR which has spelt out
the content of human rights in international law. The declaration is not a legal document
with binding force but it is so comprehensive that some of its provisions constitute the
general principles of international law. It contains a list of political, economic, social and

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cultural rights. The objective of the declaration is to urge states to establish procedure for
protection of human rights. It is a standard by which the behavior of states, individuals
and multi-national corporations are judged. The aim of the drafters was to provide
guidelines which states would aim to achieve. It sets human rights as a priority objective
of the United Nations. The declaration has 30 articles covering the most important
fundamental human rights.

The Preamble of the UDHR illustrates the significance and relevance of Human Rights in
the shaping of the world order. At the very outset the Declaration recognises the inherent
dignity, equality and inalienability of rights of all members of human society, upon which
freedom, justice and peace of the world is founded. The preamble emphasises the
necessity of protection of human rights by the system of Rule of law

Art.l of the declaration states, "All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood". This article justifies and codified the philosophy of
natural law (natural rights)

Art.2 ensures everyone's entitlement to all rights and freedoms set forth in the declaration
without distinction as to race, colour, sex, language, religion, political or other opinion,
national or social origin property, birth or other status.

From Art.3 to 21 deals with civil and, political rights. These rights are also known as the
first generation rights and include for example, right to equality, to life, to fair trial, to
freedom of assembly, opinion and expression and thought, conscience and religion.

Art.22 to 27 deal with Economic, Social and Cultural rights. These are also known as
second generation rights and include for example, right to social security, to work, to rest
and leisure and right to education. Such rights are collective rights. Though such rights
does not directly relate to individual, but they contribute largely to the individual welfare.
They present a social view of individual welfare, because the individual welfare party
results from the economic, social and cultural conditions in which he lives.

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Art.28 entitles everyone a social and international order which shall facilitate the
realization of rights and freedom set forth in the declaration. It provides for third generation
rights.

UDHR not only deals with Rights, but also limitation of such rights. Hence it implies that
Rights enumerated therein are though basic and inherent, but are not absolute in nature.
For better enjoyment and realization of human right Art.29 prescribe duties for every-one
to the community the free and full development of the personality of man. It highlights the
careful and responsible exercise of rights wherein community at large shall be benefited.
Further, keeping the larger public interest and moral fabric of the society in view, Art.29
prescribes certain limitations for the exercise of rights and freedoms. It says, in the
exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and general welfare in a democratic
society.

Though it has been advanced as a common standard of achievement, with no binding

effect, but since its adoption it has assumed a normative character. Since its adoption
spanning more than six decades, it has been repeatedly involved by the U.N. and other
international organization, it provisions have been incorporated into various treaties and
national constitutions, and applied by international and national tribunals giving some of
its rights binding character as custom.

3.3 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

AND its OPTIONAL PROTOCOLS

The Covenant on Civil and Political Rights, having binding effect, was adopted by the UN
General Assembly on Dec, 16, 1966 and came into force March 23, 1976. The Covenant
consists of 53 Articles and the Preamble and is divided into six parts. Part I, II and III
containing 27 Articles outline in a wide spectrum of rights and freedom in greater details
and imposing (in Art.2) an absolute and immediate obligation on each of the State parties
to respect and ensure the rights enumerated herein to all individuals within its territories

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and subject to its jurisdiction. Part-IV establishes a Human Rights Committee1 to
monitor the implementation of human rights provisions under the Covenant and in case
of complaints of failure of implementation to either by one state party against another or
by the victim of such denial to investigate and resolve the matter. Part-V deals with
interpretation of the provisions of the Covenants and part-VI deals with accession and
ratification by the state parties.

In line with resolution of U.N. Charter and UDHR, this covenant in its preamble recognizes
that the inherent dignity, equal and inalienable rights of all member of the human family
is the foundation of freedom, justice and peace in the world.

Art.l stipulates all peoples right to freedom of self-determination as to their political status
and freedom to pursue their economic, social and cultural development. Further they are
free, for their own ends, to dispose of their natural wealth and resources without adversely
affecting any obligation arising out of international economic co-operation based upon the
principle of mutual benefit and International Law. It strictly prohibits, the deprivation of
their own means of subsistence to any people. It obliges the State parties to promote the
realisation of the right of self-determination and to respect that right in conformity with the
U.N. charter.

Art.2 (1) stipulates each State party's obligation to respect and to ensure to all individuals
within its jurisdiction all the rights specified in the covenant without any distinction as to
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status, where the existing legislative or other measures do not
provide for the rights recognized by the present covenant, Art.2 (2) obliges each State
party to take necessary steps, in accordance with its constitutional process and with the
provisions of the present Covenant to adopt such legislative or other measures as may
be necessary to give effect to the rights enumerated in the present covenant. Further
Art.2 (3) obliges each state party to ensure effective remedy by judicial, administrative or
legislative authorities or by any other competent authorities in case of violation of rights

1 Treaty body for the ICCPR

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and freedoms recognized herein and to ensure enforcement by competent authorities if
remedies granted.

The Covenant draws up a complex catalogue of first generation human rights, and
provides for categories of these rights. These categories of rights are determined from
the direction of the extent of states’ obligations related to them. The three categories are
the following:

• human rights of absolute nature, from which no derogation is possible;

• human rights of absolute nature, but derogation is possible;
• Human rights of not absolute nature.

The first category means human rights of absolute nature, meaning that no limitation is
possible at all, and from which no derogation is possible under any circumstances. Not
even wars, natural or other disasters threatening the existence of the state, whatsoever.
These are the most important human rights and freedoms recognized by the Covenant.
Under the Covenant these human rights are:

1. Right to life (embodied in Article 6). The Covenant itself does not consider the
death penalty being the violation of the right to life, if it is imposed and executed
by the judicial system in a lawful manner – its prohibition is added only later with
the second Optional Protocol in 1989;
2. Prohibition of torture, cruel, inhuman or degrading treatment or punishment and
the prohibition of forced medical or scientific experimentation (embodied in Article
7);
3. Prohibition of slavery and servitude (embodied in Article 8, Paragraph 1 and 2);
4. Prohibition of imprisonment merely on the ground of inability to fulfil a contractual
obligation (embodied in Article 11);
5. The freedom provided for by the principles of nullum crimen sine lege ("no crime
without law") and nulla poena sine lege (no punishment without law) (embodied in

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 Article 15) 2Prohibition on Retrospective Effect of Criminal Law. These principles
of criminal law provide for rule of law in case of criminal cases;
6. Right to recognition everywhere as a person before the law (embodied in Article
16)
7. Right to freedom of thought, conscience and religion (embodied in Article 18,
Paragraph 1 and 2). It is important to emphasize here, that this freedom does not
extend to the practice or dissemination of the same.

The second category of human rights are those which are considered to be of absolute
nature, but under extreme circumstances it is allowed for the states party to derogate from
them. Of course this possibility has to be allowed very carefully to avoid states’ attempts
to misuse it.

Article 4 of the Covenant makes this possible in cases of “time of public emergency which
threatens the life of the nation” and sets the additional condition that “the existence of
which is officially proclaimed” by the application of the relevant domestic rules.3
Additionally to this condition of domestic nature, international ones are also present:
states deciding to derogate shall immediately inform other states party to the Covenant
via the UN Secretary-General, and it shall inform them of the reason of derogation and
the provisions this derogation touches upon. Termination of these derogations have to be
communicated in the same manners. The possibility of these derogations are also limited
by the Covenant: they may be applied only to the extent strictly required by the exigencies
of the situation, and they must not be inconsistent with states’ other obligations under
international law, and additionally, they must not involve any prohibited discrimination,
namely on the ground of race, colour, sex, language, religion or social origin.

These human rights are:

1. Prohibition of forced or compulsory labor (embodied in Article 8, Paragraph 3);

2 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a
criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If,
subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the
offender shall benefit thereby
3 Refer to art 30 of the bill of rights cap 1 of the laws of Zambia

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 2. Rights of detained persons (embodied in Article 10);
3. Judicial guarantees, except for the publicity of trials (embodied in Article 14);
4. Protection of privacy, family, home, correspondence against unlawful or arbitrary
interference (embodied in Article 17);
5. Protection of family life, right to marriage (embodied in Article 23);
6. Children’s rights (embodied in Article 24);
7. Equality before the law (embodied in Article 26);
8. Rights of ethnic, religious or linguistic minorities (embodied in Article 27).

The third category of human rights are those which may be subject to limitations by states
to ensure the operation of the state and the society. Most of the human rights are subject
to these, but under the Covenant, these limitations has to meet the rules set by its
provisions and those may not extend beyond the necessities justified, and they have to
be imposed in conformity with the states’ domestic constitutional provisions.

This category of rights covers most of the “classic” civil and political rights:

1. Right to liberty and security of person (embodied in Article 9);

2. Liberty to enter or leave a country and the movement within (embodied in Article
12);
3. Rights of aliens on the territory of the state party (embodied in Article 13);
4. Right to public trial (embodied in Article 14);
5. Exercise of the right to freedom of thought, conscience and religion (embodied in
Article 18, Paragraph 3);
6. Freedom of expression (embodied in Articles 19). Some limits are provided for by
the Covenant itself, as it explicitly prohibits propaganda for war and any advocacy
of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence (embodied in Article 20);
7. Right of peaceful assembly (embodied in Article 21);
8. Right to freedom of association (embodied in Article 22);
9. Right to participate in public matters (embodied in Article 25).

Rights provided in the covenants are not absolute in nature and are subject to limitations,
which differ from article to article.

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3.3.1 Enforcement of the provisions of the ICCPR

The enforcement of the provisions of the Covenant is observed by the Human Rights,
which is similarly to UN treaty bodies, a body of eighteen independent individuals,
composed of nationals of the states party to the Covenant who shall be “persons of high
moral character and recognized competence in the field of human rights”, elected by the
states party. After getting elected, they shall serve in their personal capacity, similarly to
the obligations of members of all UN treaty bodies.

The Committee has the main task of monitoring states’ performance related to the
Covenant. For this reason it examines regular reports prepared by states party in every
five years, and after their analysis, it addresses the state party with its conclusions and
opinions. As a development of the interpretation and assistance to practical application,
the Committee adopts so-called general comments to given provisions of the Covenant
or relevant human rights questions. These are important documents in international
human rights law as they reflect a professional interpretation of the text and additionally,
they can be considered to be experts’ opinions with serious relevance as auxiliary sources
of international law.

In case of alleged violations, the Committee can entertain inter-state complaints, if this
possibility if accepted by a declaration by the state the complaint was issued against.

3.3.2 Optional protocols to the convention on civil and political rights

The two optional protocols to the Covenant provide for important additional rules.

The first Optional Protocol to the International Covenant on Civil and Political Rights
(ICCPR-OP1), adopted at the same time, enables the Human Rights Committee to
receive and consider communications from individuals, with which they claim that any of
their right recognized by the Covenant has been violated by a state party.4 Any state party
to the Covenant becoming a party to the Protocol as well, recognizes the competence of
Committee to entertain these complaints, a possibility that is missing from the Covenant

4Read the communication by Lubuto v. Zambia, Communication No. 390/1990, U.N. Doc.
CCPR/C/55/D/390/1990/Rev.1 (1995) and Alex Soteli Chambala v. Zambia, Communication No. 856/1999,
U.N. Doc. CCPR/C/78/D/856/1999 (2003).

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itself. Individuals, who want to make such a claim, first have to exhaust all available
domestic remedies, and then are entitled to submit a written communication to the
Committee. It has to decide on the admissibility of the complaint, the conditions of which
are laid down in Articles 3 and 5, Paragraph 2 of the protocol. The complaint has to be
brought to the attention of the state party it is directed against, who has to provide written
explanations or statements clarifying the matter (and indicating the remedy applied, if
any) within six months. Admissible communications are considered by the Committee at
closed meetings, based on the written information made available to it by the state party
and the complaining individual. The views of the Committee on the matter is then
forwarded to both of them. These views adopted as a result of individual complaints are
not legally binding judicial decisions, or judgments. They are decisions of a body, which
can be considered a quasi-judicial body of an immense professional experience, so their
views can be considered as being authoritative interpretation of the text of the Covenant.

In the communication by Lubuto v. Zambia, Communication No. 390/1990, U.N. Doc.

CCPR/C/55/D/390/1990/Rev.1 (1995), the human rights committee stated that Bearing
in mind that, by becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established, the Committee wishes to
receive from the State party, within 90 days, information about the measures taken to
give effect to the Committee's Views.5

The Second Optional Protocol to the International Covenant on Civil and Political Rights
(ICCPR-OP2), adopted by the General Assembly in December 1989, aims at the
abolishment of the death penalty. States ratifying the Protocol take the obligation that
nobody within their jurisdiction shall be executed. The provisions of the Protocol are
considered to be additional provisions to the Covenant, thus amending its original rules

5The same is in the communication of Alex Soteli Chambala v. Zambia, Communication No. 856/1999,
U.N. Doc. CCPR/C/78/D/856/1999 (2003).

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related to right to life, which – as we have seen earlier – has not seen the death penalty
as a violation of the right to life yet. The Human Rights Committee has an observation
and control function regarding to this protocol as well, with respect to states party to the
first Optional Protocol, it can receive and consider communications related to the
provisions of the Second Optional Protocol as well, unless the state party has made a
contrary statement when ratifying or accessing the Protocol.

3.4 INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS -1966
International Covenant on Economic, Social and Cultural Rights was adopted by the
General Assembly on 16th December, 1966 and entered into force on 3 January, 1976.
This Covenant is a reflection of the determination of United Nations organisation as set
out in Art.55 & 56 of the charter to ensure higher standard of living, full employment and
conditions of economic and social progress and development solutions of international
cultural and educational cooperation, which was re-affirmed in the Universal Declaration
of Human Rights.

Besides preamble, this Covenant comprises of 31 Articles divided into five parts. The U.N.
charter and UDHR of 1948 being the common source both the covenant on Civil and
Political Rights and on Economic Social and Cultural rights their preambles are almost
similar. Part-I which contain Article 1 only exactly same as that of Civil and Political
Covenant.

Art.2 obligate the State parties to take steps individually and through international
assistance and cooperation, within maximum of its available resources, to achieve full
realization of rights, progressively, recognized in the present covenant, without
discrimination of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status. It gives liberty to the
developing countries to determine to what extent they would guarantee the economic
rights recognized under the covenant to non-nationals.

According to Article.3 men and women are to enjoy equally all economic, social and
cultural right set forth in the Covenant.

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Article.4 provides that rights provided by the State in conformity with the present covenant
may be subjected to limitations by law only which shall be compatible with the nature of
these rights and solely for the purpose of advancing the general welfare in a democratic
society.

Art.5 prohibits any interpretation as to the provisions of the Covenant aiming at the
destruction of any rights or freedom or their limitation to a greater extent than provided
for in the Covenant and also prohibits any restriction upon or derogation from any of the
fundamental human rights recognized or existing in any country on the pretext that the
present covenant does not recognize such rights or that it recognizes them to a lesser
extent.

Part-Ill contains 9 articles from Arts.6 to 15, which provides the substantive Economic,
Social and cultural Rights. The Covenant recognizes the following human rights:

1. Right to work (embodied in Articles 6 and 7);

2. Right to form and join trade unions (embodied in Article 8);
3. Right to social security (embodied in Article 9);
4. Protection and assistance to the family (embodied in Article 10);
5. Right to an adequate standard of living (embodied in Article 11);
6. Right to health (embodied in Article 12);
7. Right to education (embodied in Articles 13 and 14);
8. Right to cultural freedoms (embodied in Article 15).

3.4.1 Enforcement mechanism of the Covenant

The Committee on Economic, Social and Cultural Rights (CESCR) is a body of

independent experts responsible for monitoring the performance of states party to the
Covenant. The Covenant originally has not provided for this body, it has given this task
to the United Nations Economic and Social Council. The Committee was created in 1985,
by ECOSOC Resolution 1985/17, with the aim of having a body to which this task can be
delegated. States party have to submit regular reports to the Committee on their actions
regarding the rights recognized by the Covenant in every five years. These reports are

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examined by the Committee, which then addresses its concerns and recommendations
to the state party examined. This takes the form of “concluding observations”.

The Committee also has the practice similar to other UN treaty bodies of publishing its
interpretation of the provisions of the Covenant, titled as general comments. However,
call for a stronger mechanism had been present, and as a result, additional to the
reporting procedure, the drafting of a complaint procedure had been initiated. It has turned
reality, as the Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights (OP-ICESCR) entered into force in 2013, five years after its adoption in
2008. The protocol has provided the Committee competence to receive and consider
communications from individuals claiming for the violations of their rights under the
Covenant by a state party. Next to the individual complaint procedure, inter-state
complaint may also be entertained by the Committee, if states specifically consent to this.
Similarly, on the same condition, the Committee may undertake inquiries on grave or
systematic violations of any of the economic, social and cultural rights set forth in the
Covenant.

Note that:

The detailly drawn out International Bill of Human Rights codifying what constitute Human
Rights and its enforcement mechanism internationally, committing the Sovereign States
to it ushered in an era of human rights. It laid firmly the foundation of Human rights which
forms the cornerstone of the humanity and it civilisational growth. Although the foundation
for the further development of human rights was firmly laid with the adoption of
International Bill of Human Rights, but they do not cover the entirely of human rights and
related issues. There other human rights issues like genocide, torture, cruel, inhumane
and degrading treatment or punishment or rights in war situation, trafficking in human
person, racial discrimination, apartheid, rights of vulnerable groups like refugees, women,
stateless person, child migrant workers, have been dealt with separately and separate
internationally binding Conventions have been framed.

3.5 REGIONAL IMPLEMENTATION OF HUMAN RIGHTS: AFRICAN CHARTER ON

HUMAN AND PEOPLE’S RIGHTS (BANJUL CHARTER)

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Introduction

This part of the unit focuses on the evolution and promotion of human rights within the
African Union (AU)/region, starting from the founding of the Organisation of African Unity
(OAU) in 1963.
Historical development in the framework of the OAU / AU, AU and the African
system
The Organization of African Unity (hereinafter: the OAU) was established by thirty-two
African states by signing the OAU Charter in 1963 as the first regional (continental)
international organization of Africa. OAU was based in Addis-Ababa, Ethiopia and its
primary aim was to serve as a forum for dialogue and cooperation among the African
states. It was based on the principles of state sovereignty and non-interference, and also
to foster the decolonization process throughout the continent as it was believed that Africa
could not be considered free unless the last colony had gained its independence,
achieved the right to self-determination, and won the fight against apartheid. Each African
States gained membership in the OAU in line with decolonization, however, Morocco
renounced its membership in 1984 due to the admission of the Sahrawi Arab Democratic
Republic (commonly known as ‘Western Sahara’) as a member of the organization. OAU
was an international organization of a ‘traditional type’ since its functions could be sorted
to three main areas: representative, executive and administrative functions. One of its
purposes were ‘to promote international cooperation, having due regard to the Charter of
the United Nations and the Universal Declaration of
Human Rights’.
However, it has been argued that, while the OAU played a significant role in the
decolonisation and freedom of countries and peoples, it did not expressly uphold the
values inherent in human rights norms and standards as they relate to individuals and
groups. Furthermore, by adopting an unconditional position on non-interference, the OAU
became ineffective in the promotion and protection of human rights in a decolonised and
free Africa
The OAU Charter was replaced and the OAU was disbanded by the Constitutive Act of
the African Union (hereinafter: the Constitutive Act) that was signed in Lomé (Togo) in
2000 by fifty-three African states. The Constitutive Act entered into force a year later and

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every African states have a membership in the African Union (Hereinafter: AU). One of
the objectives of the AU is ‘to promote and protect human and peoples’ rights in
accordance with the African Charter on Human and Peoples’ Rights and other relevant
human rights instruments’ and for achieving this, the AU functions in accordance with the
principle of respecting human rights.
In spite of the Organisation’s endorsement of the principles of the Universal Declaration
on Human Rights of 1948 in the preamble of the OAU Charter, the promotion and
protection of human rights within OAU member states was not a major priority. As such,
it concentrated its efforts on political and economic independence, non-discrimination and
the liberation of Africa, the eradication of colonialism on the continent and apartheid in
Southern Africa, at the expense of individual liberty.

In the early days of its existence, different groups which included the Media, the Church,
inter-governmental and non-government organisations (NGOs) mounted pressure on the
OAU by exposing some of the most gruesome human rights abuses on the continent.
They accused the Organisation of abandoning its primary goal of restoring dignity to the
humiliated African peoples. It was accused of double standards for condemning apartheid
in South Africa while failing to condemn the massive human rights violations committed
by some of its own members. At the same time, the said pressure groups were
encouraging the establishment of a human rights protection mechanism on the continent

The Banjul Charter

Signed in Nairobi, the core human rights instrument of Africa is the African Charter on
Human and People’s Rights (hereinafter: Banjul Charter) that was adopted unanimously
by the Assembly of the OAU in 1981 and entered into force in 1986. The name Banjul
Charter comes from the fact that draft Charter was adopted and subsequently submitted
to the OAU Assembly in Banjul, the Gambia. It is for this historic role of The Gambia that
the African Charter is also referred to as the ‘Banjul Charter’.
Unlike European regional human rights treaties, Banjul Charter contains provisions of
unusual and different kind. The African Charter on Human and People's Rights (Charter)
is the foremost legal instrument for the promotion of human rights in Africa. Protocol

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allowing the creation of the African Court on Human Rights has been subsequently
adopted.
The Charter establishes duties for states and individuals and recognises the most
universally accepted civil and political rights, as well as economic, social and cultural
rights. Acknowledging the indivisibility and the collective dimension of rights such as self-
determination. Banjul Charter contains both civil and political rights and economic, social
and cultural rights and even some ‘third generation’ rights that often overlap with certain
collective rights as the ‘right to development’ or the ‘right to general satisfactory
environment’. The first and the second generations of human rights are considered as
interrelated and dissociated by the Charter.
In addition, the Banjul Charter also have some provisions on the duties of individuals. In
general, individuals have duties towards ‘his family and society, the State and other
legally recognized communities and the international community.’
The first Chapter of the charter deals in art. 3-14 with civil and political rights in art. 15-17
with socio-economic rights and includes several peoples’ rights in art. 19-24, these are
exercisable collectively and include e.g. the right to an existence, the right to freely
dispose of wealth and natural resources etc. Several rights are not guaranteed by the
ACHPR such as the right to privacy, the right to a nationality, the right to vote in
periodic and genuine elections, the right to form and join trade unions.
Chapter II of the ACHPR tries to preserve African values and traditions as it incorporates
duties of the individual toward his family, toward society, toward the State and toward the
international community (art. 27-29). Unlike other international human rights conventions,
the ACHPR does not contain a special derogation clause allowing a state in situations
of national emergency to suspend the rights in the charter, instead art. 27 (2) ACHPR
states that rights can only be limit by the rights of others, collective security, morality and
common interest. While not providing for derogation clauses, the African Charter contains
a number of articles with provisions that limit the reach of these rights, and which have
been referred to as ‘claw back clauses’. Art. 9(2) ACHPR provides an example of such
clause: ‘… every individual shall have the right to express and disseminate his opinions
within the law’. The only supervisory body established directly within the Charter is the
African Commission on Human and Peoples’ Rights entrusted with the task to

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interpret the Charter by taking into consideration, ‘the Charter of the Organization of
African Unity, the Universal Declaration of Human Rights, other instruments adopted by
the United Nations and by African countries in the field of human and peoples rights’.6
The second supervisory body, the African Court on Human and Peoples’ Rights, was
originally not foreseen in the Charter but was established by an additional Protocol to the
ACHPR.

Monitoring Mechanisms
Charter provides for three main implementation mechanisms:
• Inter-State communications;
• Other communications (which include individual and group complaints); and,
• State reporting procedure.
These monitoring mechanisms are mandatory under the African charter as opposed to
the other regional treaties where state parties have to declare the competence of a treaty
body to invoke procedure.
Procedural requirements for inter-state complaints are provided for in articles 47 to 54,
whereby one State Party may bring a complaint to the effect that another State party has
violated the provisions of the Charter Complaining State writes to respondent State about
alleged violation of Charter or under Article 49, refers the matter directly to the
Commission. Within three months, respondent State shall give complaining State
explanation.
If the matter is not settled to the satisfaction of both States, either State can submit the
matter to the African Commission. The Commission will attempt an amicable solution and
prepare a report stating the facts and its findings. The report is sent to the States
concerned and to the Assembly of Heads of State and Government. The report is
accompanied by the Commission’s recommendations on the matter.
Article 55 allows for communications other than those of States parties to the
Charter.
These may be received from individuals, groups or non-governmental organisations.

6 Refer to art 60

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Admissibility requirements for such communications are laid down in Article 56. The
communications must:
1. Indicate their authors even if the latter request anonymity;
2. Are compatible with the Charter of the Organisation of African Unity or with
the present Charter. In the case of Kevin Mgwanga Ngumne et al V.
Cameroon7, the African Commission, drawing inspiration from its previous
decisions affirmed that, the condition relating to compatibility with the
Charter, basically requires that: (a) the Communication should be brought
against a State party to the African Charter; (b) the Communication must
allege prima facie violations of rights protected by the African Charter; (c)
the Communication should be brought in respect of violations that occurred
after ratification of the African Charter or where violations that began before
the State Party ratified the African Charter have continued even after such
ratification. To be in conformity with the African Charter also requires the
petition to contain a certain degree of specificity, and that the allegations
are not vague;
3. Are not written in disparaging or insulting language directed against the
State concerned and its institutions or to the Organisation of African Unity;
4. Are not based exclusively on news disseminated through the mass media;
5. Are sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged;
6. Are submitted within a reasonable period from the time local remedies are
exhausted or from the date the Commission is seized of the matter;
ECHARIA V KENYA (COMMUNICATION NO. 375/09) [2011] ACHPR 89;
(5 NOVEMBER 2011) and,
7. 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 Organisation of African Unity or the provisions of the present
Charter.

7 (COMMUNICATION NO. 266/2003) [2009] ACHPR 99; (27 MAY 2009)

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Read the case of SPILG & ORS V BOTSWANA (277/2003) [2011] ACHPR 81; (1
DECEMBER 2011) for a better understanding of admissibility of complaint
Before they are considered, the communications (complaints) must be brought to the
knowledge of the State concerned. This is to allow the State to prepare its response.

African Commission on Human and People's Rights (ACHPR)

The organ tasked with the interpretation of the Charter, as well investigating individual
complaints referring to its violation is the African Commission on Human and Peoples’
Rights (ACHPR). The ACHPR was established according to Art. 30 of Charter and was
inaugurated in November 1987. The ACHPR meets on ordinary session twice a year and
has its Secretariat in Banjul (Gambia). As a body formally dependent from the AU, the 11
individual members who form the ACHPR are elected by the AU Assembly among the
experts nominated by member states. The commissioners subsequently elect a
Chairperson and Vice-Chairperson.
The African Commission on Human and Peoples’ Rights (ACHPR) promotes and protects
human rights in the 54 Member States of the African Union that have ratified the African
Charter on Human and Peoples’ Rights. Morocco re-joined the African Union in 2017,
becoming its 55th Member State, but has not yet ratified the African Charter.
ACPHR is consisted of eleven members of high morality elected by the Assembly of
Heads of States and Governments of the AU for a renewable period of six years. Even if
not being mandatory, legal experience is an advantage for becoming a member of this
Commission. Members of ACHPR must be nationals of States Parties and no more than
one national of each State is allowed to be a member at the same time. The most
important functions of ACHPR are the interpretation of the Banjul Charter and the
deliberation of complaints submitted to it. Only States Parties, organs of the AU and any
other African international organization may request the interpretation of the Banjul
Charter.
As regarding to complaint procedure, the Charter seems to prefer States that may file
complaints against another State Party if the latter allegedly violated a provision of the
Charter. However, ACHPR may receive complaints other than those from States parties
(practically from individuals). All such cases the ACHPR is allowed to decide on the merits

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and request the respondent State to do or not do something. ACHPR is seated in Banjul,
the Gambia.

The mandate of the commission

Article 45 of the Charter enumerates the functions of the Commission to be :
• the promotion of human and peoples’ rights;
• the protection of human and peoples’ rights;
• interpretation of the provisions of the Charter; and
• Any other task assigned to it by the OAU Assembly.

(a) Promotion of Human and Peoples’ Rights

The promotional function of the Commission is explained in article 45 (1) of the Charter.
The main essence of this function is to sensitise the population and disseminate
information on human and peoples’ rights in Africa. To achieve this, the Commission is
mandated under article 45 (1) to ‘collect document, undertake studies and researches on
African problems in the field of human and peoples’ rights, organise seminars, symposia
and conferences, disseminate information, encourage national and local institutions
concerned with human and peoples’ rights and, should the case arise, give its views or
make recommendations to governments’. The Commission , in collaboration with NGOs
and inter-governmental organisations has been able to establish a documentation centre
used for human rights studies and research, and has also organised several seminars,
symposia and conferences aimed at promoting human and peoples’ rights within the
continent. The Commission has also been co-operating with other human rights
institutions (inter-governmental or non-governmental) in many areas relating to the
promotion and protection of human rights.
(b) Protection of Human and People’s Rights
The second principal functions assigned to the Commission by the African Charter is
stipulated in article 45 (2) as: ‘to ensure the protection of human and peoples’ rights under
conditions laid down in the present Charter’. The protective mandate, requires the

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Commission to take measure to ensure that the citizens enjoy the rights contained in the
Charter. This entails ensuring that the States do not violate these rights and if they do,
that the victims are reinstated in their rights. To achieve this, the Charter provides for the
‘communication procedure’. This procedure is a complaint system through which an
individual, NGO or group of individuals who feel that their right or those of others have
been or are being violated, can petition (complain) to the Commission about these
violations. A communication can also be made by a State party to the Charter which
reasonably believes that another State party has violated any of the provisions in the
Charter. The Communication will be studied by the Commission and if it meets the criteria
set out in article 56 of the Charter, it will be formally accepted for consideration. The state
concerned will then be informed of the allegations and invited to submit its comments on
the same. Where more information is required from the complainant, the latter will be
informed. After carefully studying the arguments advanced by both parties, the
Commission will decide whether there has been violation, it will make recommendations
to the State and to the OAU Assembly on what the State should do including how to
remedy the victim. The Commission can also, and has on various occasions, initiated
friendly settlements, where the complainant and the accused state enter into negotiations
to settle the dispute amicably. It has also sent missions to several State parties to
investigate allegations of massive and serious human rights violations. At the end of such
a mission, the Commission makes recommendations to the States concerned on how to
improve the human rights situation.
In emergency situations – that is, where the life of the victim is in imminent danger – the
Commission might invoke provisional measures under Rule 111 of its Rules of Procedure
requesting the state to delay any action pending its final decision on the matter. As part
of its protective mandate, the Commission also receives and considers periodic reports
submitted by State parties in conformity with article 62 of the Charter. State parties are
required to submit reports to the Commission after every two years, on the legislative or
other measures they have taken to give effect to the rights and freedoms recognised in
the Charter. The Commission studies these reports and at the session engages in
dialogue with representatives from the States, and make recommendation; if necessary.
NGOs and ordinary citizens are also permitted to request copies of these reports from the

20
Secretariat of the Commission and study them. They can prepare counter-reports or
recommend to the Commission questions that could be asked to the State
representatives.
(c) Interpretation
Article 45 (3) of the Charter also mandates the Commission to interpret the provisions of
the Charter at the request of a state party, an institution of the OAU or an African
Organisation recognised by the OAU. To date, neither the OAU nor a state party to the
Charter has approached the Commission for an interpretation of any of the provisions of
the Charter. However, some NGOs have sought and obtained through draft resolutions,
the interpretation of some of the provisions in the Charter. Through this method, the
Commission has adopted many resolutions which give clarity and a broader interpretation
to some of the ambiguous provisions in the Charter.
(d) Other tasks
Under article 45 (4), the Commission can perform any other task which may be entrusted
to it by the Assembly of Heads of State and Government. The OAU Assembly has also
not entrusted the Commission with any other task apart from those specifically conferred
to it in the Charter.
Structure
Composition
The Commission consists of 11 members elected by the AU Assembly from experts
nominated by the state parties to the Charter. 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 re-
election. Once elected, the commissioners serve in their personal capacity and not as
representatives of their respective countries. Previously, 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.

Bureau of the Commission

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The Commission elects its Chairperson and Vice-Chairperson as the Bureau of the
Commission. They are elected for a term of two years and are eligible for re-election once.
The Bureau coordinates the activities of the Commission and supervises and assesses
the work of the Commission’s Secretariat. The Bureau is also empowered to take
decisions on matters of emergency between the sessions of the Commission. It is
however obligated to present a report on the situation to members at the next session of
the Commission.

Secretariat of the Commission

The Chairperson of the AU Commission appoints the Secretary of the African
Commission including other support staff necessary for the effective discharge of the
Commission’s mandate. The Secretariat provides administrative, technical and logistical
support to the Commission.
African Court on Human and Peoples’ Rights
The African Court on Human and Peoples Rights (AfCHPR) is a regional human rights
tribunal with advisory and contentious jurisdiction concerning the interpretation and
application of the African Charter on Human and Peoples’ Rights (“Banjul Charter”) and
other instruments. The Court was established by virtue of Article 1 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 Protocol). The Protocol establishing the African Court
on Human and Peoples’ Rights was adopted on 9 June 1998 in Burkina Faso and came
into force on 25 January 2004 after it was ratified by more than 15 countries.
Its jurisdiction extends to those States that have ratified the Protocol to the African Charter
on Human and Peoples’ Rights on the Establishment of an African Court on Human and
Peoples’ Rights. In addition to deciding cases, the Court may issue advisory opinions and
adopt thematic reports.
The Court may decide complaints against any State party to the Protocol that are referred
to it by: the African Commission on Human and Peoples’ Rights; a State party or, African
intergovernmental organizations.
Only 32 Member States have currently ratified the Protocol establishing the African Court.
Out of these, only eight (8) States have accepted the competence of the Court according

22
to its Art. 34 (6), according to which individuals and NGOs can directly file cases to the
African Court. In the absence of such a Declaration, the application must be submitted to
the Banjul Commission first, which may then – after preliminary examination – decide to
refer the case to the Court.

Composition
The 11 judges of the court are elected for renewable, six-year terms. The Protocol to the
African Charter on Human and Peoples’ Rights on the Establishment of an African Court
on Human and Peoples’ Rights, along with the AfCHPR’s Rules of Court, set out the
Court’s functions and operating procedures.

Jurisdiction
The Court applies the provisions of the African Charter on Human and Peoples’ Rights
and other human rights instruments ratified by the States concerned. It does not have
criminal jurisdiction like the International Criminal Court.
Contentious Jurisdiction of the Court
Under Article 3 of the Protocol, the Court has jurisdiction to deal with all cases and
disputes submitted to it regarding the interpretation and application of the Charter, the
Protocol and any other relevant human rights instrument ratified by the concerned States.
The Court can only deal with cases submitted against Countries that have ratified the
Protocol and deposited the Article 34(6) Declaration in cases involving individuals and
Non-Governmental Organisations. The case must involve allegations of human rights and
those alleged violations must have taken place in the State concerned after it ratified the
Protocol, unless the alleged violations are on-going.

Advisory Jurisdiction of the Court

Under Article 4 of the Protocol, the Court may, at the request of a Member State of the
African Union, any of the organs of the African Union, or any African organization
recognized by the African Union, provide an opinion on any legal matter relating to the
Charter or any other relevant human rights instruments, provided that the subject matter
of the opinion is not related to a matter being examined by the Commission.

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Powers of the court
Further note that under article 27(2) of the protocol the Court is empowered to order
provisional measures in cases of extreme gravity and urgency and when necessary to
avoid irreparable harm to persons" and 'Which it deems necessary to adopt in the interest
of the parties or of justice". Refer to the case of African Commission On Human And
People’s Rights V Jamahiriya (Order For Provisional Measures) (Application No.
004/2011) [2011] Afchpr 1; (25 March 2011) were the court unanimously orders the
following provisional measures:
The Great Socialist People's Libyan Arab Jamahiriya must immediately refrain from any
action that would result in loss of life or violation of physical integrity of persons, which
could be a breach of the provisions of the Charter or of other international human rights
instruments to which it is a party.
The Great Socialist People's Libyan Arab Jamahiriya must report to the Court within a
period of fifteen (15) days from the date of receipt of the Order, on the measures taken to
implement this Order.
Also read the case of African commission on human and peoples’ rights v the
republic of Kenya application no.006/2012

Specialised African Human Rights Instruments

The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969

As a response to the refugee problem the OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa of 1969 entered into force in 1974. This
Convention was drawn up by taking into consideration the United Nations Convention
relating to the Status of Refugees 1951 but is in some provisions broader as the UN
Convention and therefore provides cooperation between the OAU/AU and the office of
the United Nations High Commissioner for Refugees.

The African Charter on the Rights and Welfare of the Child 1990 (Children’s Charter)

This Charter was adopted in 1990 and has similar provisions to the UN Convention on
the Rights of the Child. In Africa the rights extend to all those below the age of 18 without

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exception. Similar to the ACHPR this Charter also contains duties: children have
responsibilities towards the family by respecting and caring for the parents, superiors and
elders, society, the State and the international community. A Committee on the Rights
and Welfare of the Child was established to monitor states compliance with the Charter.

Protocol on Women’s Rights

Since the ACHPR only contains in Art 18 (3) a short provision on the elimination of
discrimination against women, a Protocol on women’s rights, which entered into force in
2005, complements it. The rights guaranteed in this Protocol address issues related to
abortion, female genital mutilation, and vulnerable groups such as the elderly and the
widowed. Some of the provisions in the Protocol deal only with specific issues affecting
women, while others deal with rights that should apply equally to men and women and
are not included in the ACHPR

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