The African Charter of Human and Peoples’ Rights came into force in 1986, making 2006 the 20th year of its existence. As African heads of state prepare to meet in Banjul, The Gambia for the 7th African Union Summit, Ahmed C Motala evaluates the successes and failures of The Charter for the protection and promotion of human rights on the continent.

The African Charter on Human and Peoples’ Rights (the African Charter) was adopted on 27th June 1981 by the Organisation of African Unity (OAU), predecessor to the African Union (AU), at its Assembly of Heads of States and Government in Nairobi, Kenya. This year marks the twentieth anniversary of the entry into force of the African Charter, which came into force in October 1986. Some commentators have hailed the African Charter as a progressive document that, amongst others, recognises the indivisibility of civil and political rights and economic, social and cultural rights, distinct from other international human rights treaties. The African Charter was also the first human rights treaty to refer to the right to development, although it did not define this right. Others have criticised the African Charter for its many shortcomings, in particular its ‘claw-back’ clauses, which make certain rights subject to domestic law. For example, Article 9(2) of the African Charter states: “Every individual shall have the right to express and disseminate opinions within the law.” Other rights such as the right to privacy do not feature in the African Charter and some rights including the right to fair trial are inadequately defined.

The African Commission on Human and Peoples’ Rights (African Commission), the body created under the African Charter to monitor compliance by states with the treaty, currently functions in an environment plagued by civil wars in several countries including Sudan, Côte d’Ivoire, Democratic Republic of Congo and Chad. Serious human rights violations continue throughout the continent from Egypt to Equatorial Guinea and Ethiopia. The phenomenon of coup d'état and counter coups continue to haunt many countries. Measures adopted by governments throughout Africa to counter terrorism make serious inroads into long-standing human rights values. A growing commitment to human rights by a handful of progressive countries including Mali, Benin and South Africa on the other hand offer some optimism that the continent is intent on improving its human rights record.

At the time of the drafting and adoption of the African Charter the OAU Charter entrenched the central principle of State sovereignty and non-interference in domestic affairs. This principle prevented the OAU and African States from intervening to prevent serious human rights violations including the massacre of civilians by dictators such as Idi Amin of Uganda, Emperor Bokassa of Central African Republic, Mengistu Haile Mariam of Ethiopia, Valentine Strasser of Liberia, Hissene Habre of Chad and Samuel Doe of Liberia. In fact, former dictators such as Mengistu and Habre continue to enjoy the hospitality of Zimababwe and Senegal respectively, with both States refusing to extradite them to stand trial for international crimes.

After its creation, the African Commission too failed to deal effectively with some of the most serious human rights violations committed on the continent, most recently the genocide in Rwanda. Being a creation of the OAU, and now reporting to the AU, the African Commission has been hampered, amongst others, by the lack of political will and initiative of its political masters to deal with serious human rights violations. After all, the dictators and human rights violators have been part of the same club of heads of states to which the African Commission was required to submit its annual report, which included information on serious violations of human rights.

With the establishment of the African Union, on paper at least there is a stronger commitment to human rights. The objectives of the AU as enshrined in its Constitutive Act include “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”. The AU is also based, amongst others on the principle of “respect for democratic principles, human rights, the rule of law and good governance”. The key question is whether the values enshrined in the Constitutive Act are implemented by AU member states or the institutions of the AU? There is little evidence to suggest that the AU is willing to hold member states accountable for human rights violations. Zimbabwe is a case in point. Despite the African Commission presenting a report to the AU Assembly in July 2004 on the human rights situation in Zimbabwe and recommending measures to be taken to redress the situation, the Assembly failed to hold the Zimbabwean authorities accountable. Instead, it took cognisance of Zimbabwe’s objections that it had not had an opportunity to comment on the report and delayed the adoption of the African Commission’s annual report for six months.

However, the Peace and Security Council seems to have acted with considerable resolve in attending to conflict situations. In trying to address the conflict in the Darfur region of western Sudan, the Council authorised the deployment of an AU peace-keeping mission against the wishes of the Sudanese Government of President Omar El Bashir. The Constitutive Act has narrowed the ambit of state sovereignty by stipulating “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”. This right of intervention was the consequence of the severe criticism of the OAU for its failure to act in the face of the genocide in Rwanda. It is encouraging to see that the AU is willing to act in accordance with its right of intervention, even against the wishes of the member state concerned. Whether the AU Mission in Sudan has been effective in reducing human rights violations is the subject of another article.

How has the African Commission fared over the last two decades? An analysis of the work of the African Commission would show considerable progress over the last twenty years. However there also have been many obstacles that have hampered its work and consequent effectiveness on the continent.

The African Commission rendered numerous decisions on complaints filed before it, primarily by NGOs. These decisions have been against a range of countries including Egypt, Algeria, Sudan, Malawi, Nigeria, Cameroon and Botswana. Its jurisprudence has improved considerably over the years with recent decisions being well-reasoned. However, the African Commission would have to improve its decisions considerably if it expects the newly established African Court on Human and Peoples’ Rights to uphold its decisions. The current staff of the African Commission comprises of dedicated but inexperienced lawyers. Without skilled litigators and experienced legal researchers on its permanent staff, the African Commission is not likely to improve its decisions to a level that would be to the satisfaction of the African Court. Unfortunately most States have ignored the rulings of the African Commission and its parent body the AU Assembly has failed dismally to hold these states accountable. As long as African States that are the subject of such complaints ignore the decisions of the African Commission, its status as the main body on the African continent responsible for the protection and promotion of human rights would remain minimal.

The mandate of the African Commission includes formulating and laying down rules upon which African States may base their legislation. In this regard the African Commission has made considerable contribution by adopting a range of principles and guidelines. These include: Declaration of Principles on Freedom of Expression in Africa, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman and Degrading Treatment or Punishment in Africa and Principles and Guidelines on Fair Trial and Legal Assistance in Africa. The intrinsic value of these pronouncements by the African Commission is that they articulate standards that are of pertinence to the situation prevailing in African countries. Regrettably there is little evidence that African States have considered these declarations in the development of their own legislative framework.

The African Commission has been plagued by inconsistency in its performance, which has been dependent on its composition. The effectiveness of the treaty body depends on the independence and impartiality of the Commissioners. Disappointingly, African States have undermined the independence of the African Commission by nominating and electing Commissioners whose independence was compromised or who were perceived to lack independence by virtue of their position in their government. Over the last twenty years various Commissioners have held positions of ministers, attorney-generals, ambassadors and advisers to their president. This has not only coloured the perception of the African Commission but has resulted in it lacking initiative to tackle some of the most serious human rights violations facing African countries. One example is that of the African Commission’s Special Rapporteur on Extra-judicial Executions whose appointment came on the eve of genocide in Rwanda in April 1994. During his tenure he failed to investigate the events in Rwanda or to visit the country. During his tenure at the African Commission the incumbent was the diplomatic representative of his country in Ankara and subsequently in Geneva.

The lack of adequate resources has considerably hampered the work of the African Commission. The annual budget allocated by the AU for 2005 was US$1,142,051, considerably less than some large national NGOs. This despite repeated resolutions adopted by the AU Assembly urging that the African Commission has to be provided with adequate resources. The African Commission has had to rely on assistance from foreign donors including the European Union and individual European governments. This should be a source of embarrassment to the African Union that it is unable to provide sufficient resources to its primary human rights body. It also calls into question the commitment of the AU and its member states to the protection and promotion of human rights on the continent.

The protection of human rights in Africa will be enhanced by the establishment of the African Court on Human and Peoples’ Rights (African Court). The eleven judges of the African Court were elected at the AU Assembly in January this year and are to be sworn in at the forthcoming Assembly at the beginning of July 2006. With the African Court having the authority to hand down binding decisions and the Executive Council of the AU being required to monitor implementation of the decisions, the protection of human rights on the continent is likely to improve. However, errant states are only likely to fully implement its decisions if the Executive Council is willing to take measures against states that fail or delay in applying the decision of the African Court. Lack of resources is likely to plague the African Court too unless the AU establishes the voluntary human rights fund recommended by the First AU Ministerial Conference on Human Rights held in Kigali in May 2003 and African states make considerable contributions to that fund.

We are at the dawn of a new era in the protection of human rights. Establishment of the African Court is only the first step in the journey through this era. Much still has to be done in the identification of a suitable location for the African Court, in the provision of adequate facilities and resources and in recruitment of suitably qualified and experienced staff. In all of this and in the effective functioning of the African Court the political support of the AU and its member states is of the utmost importance.

African states bear considerable responsibility for the protection of human rights. Domestic institutions including national human rights commissions and courts should bear the primary duty for the protection of human rights. The establishment and strengthening of an independent judiciary in each African state and respect of and adherence to the decisions of the national courts is of vital importance. The regional system of human rights protection only becomes relevant where the national courts either fail to protect human rights or in instances where the state ignores the decisions of its own courts.

* Ahmed C Motala is Executive Director of the Centre for the Study of Violence and Reconciliation

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