Chapter 2.

The African system

of protection of Human Rights

The African continent consists, mostly, of States

stemming from the decolonisation around the
years 1960-1970. After their access to the
international
sovereignty, their
priorities
concerned:
-the national reconstruction,
-the economic development and
-the national unity.
Nevertheless, these States joined the movement
of regional organisations ebsitehich begun in
Europe and in America and encouraged by the
Charter of the United Nations.

Section 1. The Organization of

African Unity (OAU)

. May, 1963 in Addis Ababa, birth

of the Organization of African
Unity (OAU).

The OAU was replaced, since 2002, by

the African Union (AU). It is a union
consisting of 54 states.

1981 (June 27th) African Charter

on Human and peoples
Rights, the Charter of the OAU
was adopted by 32 independent
African States,
in Nairobi, Kenya,
also known as Banjul Charter

 1. The Organization of
African Unity (OAU) Charter

The Charter came into force on

October 21st, 1986 and was ratified
by almost all the African countries
(53 States), with the exception of
Morocco[1].
[1] Morocco withdrew from the African organization in
1984 to protest against the admission within it of the
Sahrawi Arabic Republic, which competes it for the
sovereignty the Western Sahara, the former Spanish
colony under Moroccan control since 1975.

African Charter of OAU is centred on:

-the right of peoples to selfdetermination,
-fight against colonialism and racial
discrimination.

African Charter on Human and Peoples' Rights

is inspired by European, American and universal
models, in the sense that it makes a wide place to the
classic rights and liberties, such as:
the equality in front of the law, the dignity, the right
for the safety and for the fundamental jurisdictional
guarantees, freedom of conscience, association and
religion.

But the African Charter has some

specific characteristics whose
inspiration derived from:
-Africas colonial history,
-philosophy of law and
-conception of man.

The focus on African

traditions is mentioned from
the preamble of the African
Charter on Human and
Peoples' Rights
Read preamble on the next slide

AFRICAN CHARTER ON HUMAN AND PEOPLES'

RIGHTS
PREAMBLE
The African States members of the Organisation of African Unity,
parties to the present Convention entitled African Charter on
Human and Peoples Rights
Recalling Decision 115 (XVI) of the Assembly of Heads of State
and Government at its Sixteenth Ordinary Session held in
Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of
a preliminary draft on an African Charter on Human and
Peoples Rights, providing inter alia for the establishment of
bodies to promote and protect human and peoples rights;
Considering the Charter of the Organisation of African Unity,
which stipulates that freedom, equality, justice and dignity are
essential objectives for the achievement of the legitimate
aspirations of the African peoples;

AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS

PREAMBLE (continuing)

() Reaffirming the pledge they solemnly made in Article 2 of the

said Charter to eradicate all forms of colonialism from Africa, to
coordinate and intensify their cooperation and efforts to achieve a
better life for the peoples of Africa and to promote international
cooperation having due regard to the Charter of the United Nations
and the Universal Declaration of Human Rights; Taking into
consideration the virtues of their historical tradition and the values
of African civilization which should inspire and characterize their
reflection on the concept of human and peoples' rights;
Recognizing on the one hand, that fundamental human rights stem
from the attributes of human beings which justifies their national
and international protection and on the other hand that the reality
and respect of peoples rights should necessarily guarantee human
rights;

AFRICAN (BANJUL) CHARTER ON HUMAN AND PEOPLES'

RIGHTS Preamble continuing

Considering that the enjoyment of rights and freedoms also implies

the performance of
duties on the part of everyone; Convinced that it is henceforth
essential to pay a particular
attention to the right to development and that civil and political
rights cannot be dissociated from economic, social and cultural
rights in their conception as well as universality and that the
satisfaction of economic, social and cultural rights ia a guarantee for
the enjoyment of civil and political rights;
Conscious of their duty to achieve the total liberation of Africa, the
peoples of which are still struggling for their dignity and genuine
independence, and undertaking to eliminate colonialism, neocolonialism, apartheid, zionism and to dismantle aggressive
military bases and all forms of discrimination, particularly those
based on race, ethnic group, color, sex. language, religion or political
opinions;

AFRICAN CHARTER ON HUMAN AND PEOPLES'

RIGHTS
PREAMBLE (continuing)
Reaffirming their adherence to the principles of human and
peoples' rights and freedoms contained in the declarations,
conventions and other instrument adopted by the Organization of
African Unity, the Movement of Non-Aligned Countries and the
United Nations;
Firmly convinced of their duty to promote and protect human and
people' rights and freedoms taking into account the importance
traditionally attached to these rights and freedoms in Africa

African Charter on Human and Peoples'

Rights has 4 main characteristics:
-Firstly, the African Charter enshrines rights
of solidarity, so-called third generation
rights.
It is the first international instrument to
provide such rights,
for example the right to the economic, social
and cultural development, the right to peace
and security, and the right to a general
satisfactory environment.

Secondly, it designates people as its unique

owner. The Charter recognizes the right of
peoples to existence and self-determination, a
feature due to the yoke of colonialism still
marked on the continent.
Thus, Article 19 of the African Charter
proclaims the equality of peoples and states:
All peoples shall be equal; they shall enjoy the
same respect and shall have the same rights.
Nothing shall justify the domination of a people
by another.

Article 19 of the African Charter on Human and Peoples' Rights

All peoples shall be equal; they shall enjoy the same respect and shall have
the same rights.
Nothing shall justify the domination of a people by another.

-Thirdly, the African Charter, operating a dialectic

between rights and duties:

it is stating duties of individuals to others persons and
to the community;
The concept of duties of the individual, based on the
principle of solidarity between the individual and
society, is coherent with the idea that African rights and
duties are inseparable.
To date, only the Universal Declaration of Human
Rights of 10 December 1948 and the American
Declaration of the Rights and Duties of Man of May 2,
1948 are briefly alluded in two of their provisions;
Read article 29 of the Charter (read next slide)

ARTICLE 29
The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for the
cohesion and respect of the family; to respect his parents at all times, to
maintain them in case of need.
2. To serve his national community by placing his physical and intellectual
abilities at its service;
3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity, particularly when
the latter is strengthened;
5 To preserve and strengthen the national independence and the territorial
integrity of his country and to contribute to his defence in accordance with the
law;
6. To work to the best of his abilities and competence, and to pay taxes
imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his relations
with other members of the society, in the spirit of tolerance, dialogue and
consultation and, in general, to contribute to the promotion of the moral well
being of society;
8. To contribute to the best of his abilities, at all times and at all levels, to the
promotion and achievement of African unity.

Fourthly, the African Charter incorporated into a single

document two different categories of individual rights,
* civil and political rights on the one hand, such as the
right to life and to physical and moral integrity
* economic, social and cultural rights such as the right to
work under equitable and satisfactory conditions, and the
right to health,
what is rare in a single international instrument, even if it
it is the case of the EU Charter and the American
Declaration of rights and duties.

It is an attempt to protect HR on the

continent and to define these rights
taking mindful consideration of the
African socio-economic situation.
But careful examination of the Charter
indicates certain limitations in the
realisation of its ideals.

The African Union adopted in

2003, a Protocol to the African
Charter of human and peoples
rights, concerning women rights
in Africa.

Between 1981,when member states of the

Organisation of Africa Unity (now African
Union) adopted the African Charter on Human
and Peoples Rights, and 2011, Africa has
experienced scores of human rights
catastrophes of extreme proportions: the
scourge of poverty, the HIV/AIDS pandemic,
the 1994 Rwandan genocide, the Darfur crisis,
and civil wars in Somalia, Sierra Leone, Cte
dIvoire and Liberia. Is there then any reason to
celebrate the thirtieth anniversary of the
Charter?
Mali and Central African Republic can be
add to that list

Some of the African Charter on

Human and Peoples Rights
provisions are quite controversial
according to the doctrine. They are
defined as claw-back clauses. They
constitute a form of a permit for the
already unwilling State to
engage in breach of the Charters
obligations using the reasons of
public utility or
national security, etc.

 2. Bodies of the AU

A. The African
Commission of Human and
peoples rights

African Commission on Human

and Peoples Rights
The African Union includes a Commission of
Human and peoples rights, since 1987, which
contains 11 members, elected by the
Conference of heads of state and governments.
This Commission is loaded with a double
mission:
-the promotion and
-the protection
of the rights and the liberties proclaimed.

The African Charter on Human and Peoples Rights

requires submitters to exhaust of national judicial
remedies before initiating proceedings before the
African Commission, "unless it is obvious [...] that
such remedies are unduly prolonged" (It is the
requirement of admissibility most controversial and
most extensive of the Charter African.)
The Commission recognized that the provision
implies and assumes the availability, effectiveness
and adequacy of national judicial proceedings. If
domestic remedies extend to abnormally, are
unavailable, ineffective or insufficient, the rule of
exhaustion does not preclude the examination of the
case.

Legal instruments
-AU Convention Governing specific Aspects of refugee Problem in
Africa 1969
-African Charter on Human and Peoples rights 1981
-African Charter on the rights and welfare of the child 1990
-Protocol to the African Charter on the estblishment of the African
Court Human and Peoples rights 1998
Constitutve act of the AU 200
- Protocol to the African Charter on Human and Peoples rights on
the rights of women 2003
African Cherter on democrcy, elections and governance 2011.

-19 States have ratified all

instruments
-26 have still one or two
instruments to ratified
-9 have still more than 3
instruments to ratify

B. The African Court of Human

and peoples rights

Like the American and European

regional systems, an African Court of
human and peoples rights was
established by a Protocol of June 9th,
1998, adopted in Ouagadougou.
This Court has a contentious and
consultative competence, to guarantee
better the effectiveness of the rights,
the liberties and the duties.

But the 15 mandatory ratifications

for the African Court to become
effective, were difficult to obtain :
1998-2004!

African Court on Human and

Peoples Rights 1998 has its
permanent seat in Arusha (the
United Republic of Tanzania).

African Court on Human and Peoples Rights

The mandate of the Court is to complement and

reinforce the functions of the African
Commission on Human and Peoples Rights (the
African Commission often referred to as the
Banjul Commission), which is a quasi-judicial
body
charged
with
monitoring
the
implementation of the Charter.

African Court on Human and Peoples Rights

The Protocol suggests that the African Human

Rights Court will make the promotion and the
protection of human rights within the regional
system more effective. However the mere
addition of a court, although a significant
development, is unlikely by itself to address
sufficiently the normative and structural
weaknesses that have plagued the African human
rights system since its inception.

African Court on Human and

Peoples Rights first case law
( CAfDHP), in December 15th, 2009
(request N 001/2008),
Michelot Yogogombaye c / Republic of
Senegal

Michelot Yogogombaye c / Republic of Senegal

According to the applicant, Senegal adopted a law which modifies its

Constitution and authorizes the retroactivity of the penal laws to judge
for acts of torture Hissein Habr, former president of the Chad today
taken refuge in Senegal. According to him, this law would violate the
principle of non-retroactivity of the penal law dedicated by the African
Charter (article 7 2) and would have been voted only for " political
purposes " and " pecuniary considerations ".
The Court rejects his request by basing itself on the provisions of the
Protocol creating the African Court of human rights and peoples. This
text, in its article 34 ( 6 ) combined with article 5 ( 3 ), plans the
possibility for the Court to examine individual requests, while
conditioning this possibility to the acceptance of State part concerned.
The Republic of Senegal not having made a declaration of recognition
of competence of the Court to know individual requests, the African
Court of human rights and peoples declares itself incompetent.

African Court
Status of cases:
-32 applications
-20 finalised
-transfered to the Commission : 4
-Pending: 8
Request for advisory opinion:
Received : 8
Finalised: 3
Withdraw: 1
Application for review:
received: 1
Pending: 1

Section 2. The weaknesses of

the African protection of HR

The African Union and its Commission presents

certain lacks regarding the guarantee of the rights, in
particular from the point of view of
-the duration of examination of the recourses
which is very long. This one can vary between two
and eight years. To procedural problems, is added the
-lack of human, financial and material resources,
because of an insufficient budget. Indeed, generally,
the lack of resources of the African States has for
consequence their default of participation in the
functioning of the African Union, which suffers from
an obvious lack of means to act.

Furthermore, the Commission depends in many respects on

the Conference of the heads of state and the governments, the
supreme organ of the African Union with important privileges
by the African Charter
For example, regarding election of the members of the
Commission and the judges of the African Court, as well as
the follow-up of the reports of the Commission, this
Conference has full competence (plein pouvoirs). It so limits
the margin of action of the Commission, what decreases its
guarantor's role of the rights and duties of the man.
Besides, the African Commission of human rights has neither
real privileges nor real decision-making power. It can only
investigate into the facts and try to find a friendly-agreement
between the States. The African system works badly because
the Commission was never seized by States and individuals
seizures have never resulted in a judgment and in a condemn
of a State.

Since 1998, an African Court of

human rights and peoples was create
to remedy the lacks of the
Commission.
But, there is a risk of competition
between the Commission and the
Court in the allocation of the
consultative competence, what can
end in divergent interpretations.

Besides, in contentious subject, for the

admissibility of:
- an individual request or
-that emanating from a NGO endowed with
observer's status,
it is necessary, in parallel that the State in
cause has to accept the competence of the
Court. Only States have accepted it: Burkina
Faso and Mali, malawi., Ghana Tanzania

The significant number of armed conflicts

on the whole African territory is an
additional difficulty in the functioning of the
African Union. In fact, African Union can
intervene in these conflicts, but the remains
little effective, even absent.
It is a paradox, because in view of its
objectives, the humanitarian protection and
the rights of the refugees are a part of
fundamental rights of every individual.

In conclusion, one of the

open question about the
African system is: has
Africa real different values or
have the African leaders a
tendency to sacrifice
individual liberties in order to
safeguard national
independence?