Rights Guaranteed under African Charter
In considering the African charter, one’s attention is easily captured by its more unusual aspects: the concept of ‘peoples’ rights’ and individual and state ‘duties’, and the inclusion of all three ‘generations’ of rights in the same supranational human rights instruments. Nonetheless, it should also be noted that the African Carter guarantees a number of rights, which must be discussed and interpreted if they would ever mean anything to anybody. The interpretation of these rights would normally be geared towards translating them into practical realities that would serve the purpose they were meant to serve. Therefore, attempt will be made here to touch briefly on some aspects of the rights recognized and guaranteed vis-à-vis the other universal and regional instruments whenever necessary to do so. For convenience, the analysis will be made under different headings representing the different clusters of rights guaranteed in the charter: civil and political rights; economic, social and cultural rights and group or collective rights. However, before embarking on the discussion of specific rights under each categories above, it merits to say something on the obligation assumed by the members states to the Charter and secondly the well known principles of human rights: the principle of non-discrimination and the principle of equality as provided in ACHPR.
State Obligations under the ACHPR
Article 1 of the African Charter describes the obligation of states in respect of the rights recognized in the Charter as follows:
The member states of the organization of African unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this chapter [chapter I] and shall undertake to adopt legislative or other measures to give effect to them.
The primary duty created by the Charter is consequently the obligation placed on state parties to recognize and give effect to the rights in the Charter. The obligation placed on the state by a human rights instruments such as the African Charter is normally considered to have four components, namely to respect, to protect, to promote and to fulfill the rights recognized. First, ‘respect’ refers to the negative obligation on the state not to interfere with the right itself. Most classical civil and political rights possess such feature though we may have cases of overlapping. To ‘protect’ refers to the positive duty on the state to ensure that other individuals do not violate one’s rights. Of course, this is the horizontal effect of rights which aims to avoid human rights violations by private persons. For example, in one communication against the government on Chad (1992), the African Commission has held that “if a state neglects to ensure the rights in the Charter, this can constitute a violation, even if the sate or its agents are not the immediate cause of the violation.” Thus, it is an imputed liability for the inaction on the part of the state or its officials.
‘Promote’ refers to the positive obligation on the state to advance a culture of human rights. Promotional duties are discharged basically through human rights education to create awareness in the general public and thereby fighting anti-human rights attitudes and customs such as against certain groups of persons (minorities, women, children, and disabled). Lastly, to ‘fulfill’ relates to a positive obligation on the state to create an environment in which people actually have access to the social goods. This dimension of the obligation requires active state participation in the realization of the right concerned either by creating favourable conditions for the individuals or groups to realize the right guaranteed by him/her self (role of facilitating) or ultimately by direct provision of certain basic necessities when the individual/group is unable to realize it. Thus, it has a resource or financial implication on the states concerned. Most socio-economic rights are said to demand this aspect of state obligation. Yet, some civil and political rights have manifested in resource implication. A failure by the state to establish an independent and well-functioning court, necessary to ensure a fair trail, would be an example of a breach of this obligation.
Hence, from the above discussion, member states to the African Charter are expected to give recognition and effect to rights stipulated in the Charter. This requires the incorporation of the African Charter into their domestic legal system by an appropriate constitutional means. They are also expected to take further measures with a view to effectively enforcing and realizing the rights in the Charter. Of course, one unique feature of the Charter is that it does not incorporate the languages of ‘immediate application’ and ‘progressive realization’ as figured out in the two UN Covenants. So what do you think is the effect of absence of such terms/phrases? Does it imply that all rights incorporated in the Charter are required to be applied immediately? Or should we interpret in light of the jurisprudences/approaches developed under the two UN Covenants? The former line of interpretation will be unrealistic given the level of economic development and social reality of many African nations. Therefore, what will be plausible is weighing the level of developments and socio-economic situation of a country and corresponding efforts made by the state concerned in the realization of the socio-economic and some civil-political rights with financial/economic implication. As regards those categories of civil and political rights which can be realized by mere forbearance of states, their immediate nature goes unquestionable.
The Principles of Non-discrimination and Equality
The principles of non-discrimination and equality are very closely linked In fact that the latter may be said to be a positive expression of the former. They are the two fundamental principles of the protection of human rights. In the words of the UN Human Rights Committee, non-discrimination, together with equality before the law and the equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights. Their fundamental character is also given recognition under the UN Charter (Articles 1 (3), 55 (6) & 76 (c), ICCPR (Art.2 (1), European Convention (Art.14) and American Convention (Art.1).
Similarly, the African Charter does not diverge appreciably from the provisions of the above quoted instruments. Non-discrimination is the first substantive right listed in the Charter, even before life. Both are among the categories/list of rights which must not be restricted.
Article 2 provides:
Every 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, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or others status.
As in the case of Article 2 (1) of ICCPR, this is the non-autonomous provision, as it can only be invoked in relation to the implementation of a right protected by the African Charter. However, in Article 3, the Charter adds that “every individual shall be equal before the law” and that “every individual shall be entitled to equal protection of the law.” Unlike non-discrimination, the scope of application of equality before and in the law extends to all human rights and ,therefore, goes beyond the strict bounds of those rights guaranteed by the African Charter. Article 2 of the African Charter provides a detailed but not exhaustive list of the prohibited bases of discrimination. The open-ended nature of the list is reinforced by the words ‘or other status’ at the end of the article. The following grounds are ‘for example, not explicitly listed: gender, age, disability and sexual orientation; while the usual ground of ‘fortune’ (as opposed to ‘property’ in the ICCPR) is included.
Like the ICCPR, the African Charter does not contain any definition of discrimination which according to some writers such as Christof Heyns reinforced the width of the article. However, as regards a definitional issue, a useful pointer can be made to Article 1 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965. Indeed not every distinction is necessarily discriminatory and equality of treatment is not synonymous with identicality of treatment. During the elaboration of Article 2 of the ICCPR for instance, it was emphasized that the adoption of special measures for the advancement of a particular disadvantaged social groups should not be considered as a form of distinction within the meaning of this provision. The UN Human Rights Committee in its General Comment stated that not all different treatment necessarily constitutes discrimination if the criterion for such discrimination is reasonable and objective and if the aim is legitimate under the covenant. Thus, in order to redress past wrongs, effect equity and make up for ingrained disabilities, it may be just to apply affirmative action i.e. reverse or positive discrimination in order to confer benefit to persons who justly deserve but would otherwise be denied.
Therefore, the principles of non-discrimination and equality as formulated by the African Charter should also be interpreted in the same way, thus permitting state parties to treat the individuals under their jurisdiction differently, yet not in a discriminatory fashion within the meaning of that instrument. Hence, measures which benefit a particular category of persons traditionally disadvantaged such as women, indigenous and minority peoples, etc should not be regarded as contrary to the principles of non-discrimination and equality proclaimed by articles 2 and 3 of the African Charter. It is the purpose of these measures i.e. establishing true de facto equality which would make them non- discriminatory.
The reference of ‘ethnic’ criterion is also taken as an interesting addition by the African Charter, which thus takes due account of an important sociological aspect of virtually all African states.
Furthermore, it should be noted that the African Charter reinforces the basic prohibition of non-discrimination under Article 2 by additional statements under Articles 18 (3) and 28 of the Charter. Even the interpretation of Article 12 (4) (5) of the Charter by the African Commission in the context of expulsion of foreigners covers the principle of non-discrimination. In these two cases, one involving Zambia and the other Angola, the Commission found that mass expulsion of foreigners without access to the courts constituted a violation, inter alia, of Articles 2 and 12 (4) & (5).
In another case which alleged the expulsion from Rwanda of Burundian nationals who had been refugees in Rwanda for many years, the Commission held that there was “considerable evidence . . . that the violations of the rights of individuals had occurred on the basis of their being Burundian nationals or members of the Tutsi, ethnic group and . . . this clearly violated article. 2. A similar decision was also given in the allegation by a Senegalese non-governmental organization on behalf of 517 nationals of West African countries who had been expelled from Zambia because of their illegal presence in the territory of that state. None of them had any opportunity to appeal against the decision to expel them [Communication 71/92].
In a more recent decision relating to a number of communications lodged against Mauritania, the Commission pointed out that the elimination of all forms of discrimination was a common objective of Article 2 of African Charter and of the Declaration of the Rights of People Belonging to National, Ethnic, Religious or Linguistic Minorities (General Assembly res. 47/135 of 18 December 1992), concluding that:
“for a country to subject its own indigenes to discriminatory treatment only because of the colour of their skin is an unacceptable discriminatory attitude and a violation of the very spirit of the African Charter and of the letter of its Article 2 [See communications 54/91, 61/91, 98/93, 167/97 to 196/97 210/98].”