22 Regional and Human Rights Systems – Africa and the Arab World

Prof. Nitin Gomber

Learning Objectives :

• In this chapter, students will learn about the African Charter of Human Rights, African Commission and the African Court and their role in protection of Human Rights.
• The chapter also discusses the regional human rights system of Arab world.
• The chapter also critically analyse the Arab Charter and gives the student a balanced perspective.

I. Regional human rights system in Africa

In 1981, the Organization of African Unity (OAU), which was established with the main objective to rid the continent from colonization and apartheid, adopted the African Charter on Human and Peoples’ Rights (also known as the Banjul Charter or the African Charter) to stand as the primary human rights instrument for the African Continent. The OAU has since been replaced by the African Union (AU), however, it legacy continues to contribute to the human rights protection systems that were created under its aegis.

The African System, like the Inter-American System and the European System (as originally designed), is composed of two entities: a Commission and a Court. These entities are tasked with the interpretation and application of a number of regional human rights instruments (in addition to the Banjul Charter). Some of these are: (a) African Charter on the Rights and Welfare of the Child, (b) Protocol on the African Human and Peoples’ Rights Court, (c) Protocol to the African Charter on the Rights of Women in Africa, (d) Convention on the Prevention and Combating of Terrorism, 1999, (e) Convention for the Protection and Assistance of Internally Displaced Persons, 2009. Now will be discussing the role and function of the Commission and the Court.

II. African Charter on Human and Peoples’ Rights or Banjul Charter or African Charter

The Banjul Charter was adopted in 1981. Since then, 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 among others. Through these tough times, the Banjul Charter has stood the test of time and has helped steer Africa from the age of human wrongs into the new age of human rights. The Charter sets standards and establishes the groundwork for the promotion and protection of human rights in Africa. The Charter has also dealt a big blow to state sovereignty by emphasizing that human rights violations could no longer be swept under the carpet of internalaffairs. Therefore, one can only imagine what the continent would have been without the Charter.

Accordingly, let me give you an overview of the provisions contained in the Banjul Charter.

• Article 2: Every individual shall be entitled to enjoyment of rights without any distinction of any kind whatsoever.
• Article 3: Every individual shall be equal before the law. Every individual shall be entitled to equal protection of law.
• Article 4: Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of his right.
• Article 5: The inherent dignity of every human being must be recognized. All forms of exploitation / degradation of man shall be prohibited (including torture, slavery etc.)
• Article 6: Every individual to have the right to liberty and security of his person; No arbitrary arrest / detention.
• Article 7: Every person shall have a right to an appeal against violation of fundamental rights, right to be presumed innocent until proved guilty, right to be defended by counsel of own choice and the right to be tried within a reasonable time by an impartial court / tribunal.
• Article 8: Everyone to have the freedom of conscience, profession and free practice of religion, subject to law and order.
• Article 9: Every person to have a right to express/disseminate his opinions within law.
• Article 10: Every individual to have the right of free association provided he abides by the law.
• Article 11: Every individual to have a right of free assembly with others, subject to necessary restrictions placed by law.
• Article 12: Every individual to have the right to freedom of movement, right to leave / return a State subject to restrictions placed by law; Mass expulsion of non-nationals to be prohibited; Every individual has a right to seek asylum, when persecuted.
• Article 13: Every citizen to have a right to participate freely in the government of his country, have right to equal access to public services / public property.
• Article 14: Everyone has the right to property. It may be encroached upon in the interest of public need / general interest of the community.
• Article 15: Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.
• Article 16: Every individual shall have the right to enjoy the best attainable state of physical and mental health.
• Article 17: Every individual shall have the right to education, to have his moral / traditional values protected and be able to take part in cultural life of his community.
• Article 18: States shall ensure that every family is protected, discrimination against women is eliminated and the aged / disabled have the right to special measures of protection keeping with their needs.
• Article 19: 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 20: All peoples to have the inalienable right to self-determination; Colonized or oppressed peoples to have a right to free themselves, along with the right of assistance from State Parties.
• Article 21: All peoples to have a right to freely dispose of their wealth and natural resources, subject to obligation of promoting economic cooperation based on mutual respect / equitable exchange and principles of international law. State parties to eliminate all forms of foreign exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their natural resources.
• Article 22: All people to have a right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
• Article 23: All peoples to have the right to national and international peace and security.
• Art 24: All peoples to have the right to a general satisfaction environment favorable to their development.
• Art 28: Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
• Art 29: Every individual shall also have the duty: to respect / maintain his parents, to serve his national community, not to compromise the security of his State, to contribute to the promotion and achievement of African unity, to pay taxes imposed by law, to preserve the territorial integrity of his country, among others.

III. The African Commission on Human Rights

The African Charter established the African Commission on Human and Peoples’ Rights. The Commission was inaugurated on November 2, 1987 and has its Secretariat in Banjul, The Gambia. The Commission consists of eleven members elected by the AU Assembly from experts nominated by the State parties to the Charter. Once elected, the commissioners serve in their personal capacity and not as representatives of their respective countries. The Commission elects its Chairperson and Vice-Chairperson as the Bureau of the Commission. It is this Bureau that coordinates the activities of the Commission and supervises and assesses the work of the Commission’s Secretariat.

The mandate of the Commission are listed down under Article 45 of the African Charter, as follows:

(a)   Carrying out sensitization, public mobilization and information dissemination on human rights through seminars, symposia, conferences and missions, (b) Ensuring protection of human and peoples’ rights through its communication procedure, friendly settlement of disputes, state reporting (including consideration of NGOs shadow reports), urgent appeals and other activities of special rapporteurs and working groups and missions, and (c) Interpreting the provisions of the Charter at the request of a State party or an individual.

Now, as seen in the case of Inter-American System, whereby the IACHR is charged with receiving individual petitions for human rights violations, the African Commission is also tasked with a similar obligation, though it’s called a communication. This Communication is one of the mechanisms whereby it receives complaints from states against another state, or by individuals and NGOs against one or more states on alleged violations of human rights in accordance with its mandate under Articles 48, 49 and 55 of the African Charter. The most important aspect of this Communication system is that any individual may bring a communication before the Commission. The African Charter is silent on the issue of standing and the Rules of Procedure of the Commission does not provide for a victim requirement. Therefore, a communication may be submitted by the victim or anyone on their behalf, as well. However, it must be noted that a communication can only be brought against a state that has ratified the African Charter and no one else.

Now, before a communication is admitted by the Commission, it must comply with the following requirements: (a) the Author must have been indicated, (b) must not be in disparaging or insulting language, (c) must not solely be based on media reports, (d) domestic remedies must have been exhausted unless, either the domestic procedure is unduly prolonged or rights claimed are not guaranteed by domestic laws., (e) must be submitted within a reasonable time after exhausting local remedies, (f) issue raised must not have been settled under other UN or AU procedures.

With respect to the functioning of the Commission, it must also be noted that once a communication has been admitted, the Commission may direct the state concerned to take one or more provisional measures pending the finalization of the communication. These measures are necessary to prevent irreparable damage being done to the victim of an alleged violation. If the state fails to comply with a request by the Commission for the adoption of provisional measures after a period specified, the Commission may refer the communication to the African Court of Human and Peoples’ Rights.

IV. The African Court on Human and Peoples’ Rights

The African Court on Human and Peoples’ Rights (African Court) was established through a Protocol to the African Charter, which was adopted in 1998 and only entered into force in 2004. The Court was established in order to complement the protective mandate of the Commission. Its decisions are final and binding on state parties to the Protocol.

The Court consists of 11 judges elected by the AU Assembly from a list of candidates nominated by member states of the AU, who serve the Court for a period of six years and are eligible for re-election only once. Also, the Court’s jurisdiction applies only to states that have ratified the Court’s Protocol. The Court may entertain cases and disputes concerning the interpretation and application of the African Charter, the Court’s Protocol and any other human rights treaty ratified by the state concerned. The Court may also render advisory opinion on any matter within its jurisdiction. The advisory opinion of the Court may be requested by the AU, member states of the AU, AU organs and any African organization recognized by the AU.

It must also be noted that individuals may directly petition the African Court, as well. However, this feature of allowing individuals to approach the African Court has been diluted to a great extent by the Court’s Protocol. Article 34 (6) of the said Protocol lays down that at the time of ratification of the said Protocol, the States shall make a declaration accepting the competence of the Court to receive cases under Article 5 (3) of the Protocol. It further states that the African Court shall not receive any petition under Article 5 (3) involving a State Party which has not made any such declaration. This means that until and unless States make a declaration accepting that individuals may also approach the African Court directly for human rights violations, individuals may not approach the Court against that State.

V. Regional human rights system in the Arab world

In 1945, Egypt, Iraq, Transjordan (now Jordan), Lebanon, Saudi Arabia and Syria signed a pact to create what is known as the League of Arab States. Over the years, the number of members of this League has increased by a considerable margin so much so that now their agreements generate considerable amount of discussion and which is why it is important to learn about their system of protection of human rights, as well.

Now, the Arab Charter on Human Rights was adopted by the League of Arab States in 1994. However, none of the member states had ratified the Charter. Therefore, the Charter was later updated and led to the amended version by the Arab summit in Tunis in 2004. The 2004 version of the Charter (known as the Arab Charter on Human Rights) only entered into force in March, 2008.

VI. Arab Charter on Human Rights

The Arab Charter contains a total of fifty-three articles, including provisions that put a positive obligations on States to provide the very basic rights to its citizens and on the other hand, it also puts negative obligations on to States to not to interfere with the lives of individuals. It protects a number of traditional human rights (as laid down under the UDHR) including the principle of non-discrimination (Article 3), the right to life (Article 5), equality before law (Article 11), prohibits any form of slavery, trafficking in human beings, and exploitation of children in armed conflicts (Article 10). It also provides that every citizen has the right to take part in public life, to stand for election and choose his or her representative in impartial elections (Article 24), and protects privacy of family, home and correspondence (Article 21).

Another field where significant improvements have been achieved is administration of justice (Article 10)   and the adoption of the agreed fair trial norms and principles (Article 16). The Charter includes a general statement guaranteeing the independence of the judiciary and protecting it from interference, pressure or threat (Article 12); it enshrines the right to liberty and security of persons, prohibits arbitrary arrest and detention (Article 14), torture and cruel, inhuman or degrading treatments, which are considered as crimes not subject to any statute of limitations, and sets out the right to reparation for victims of torture (Article 8). It also prohibits medical experimentation without the consent of the persons concerned (Article 9), restricts capital punishment to the most serious crimes (Article 6), and sets out the principles of legality of offences and penalties (Article 15), the non bis in idem principle (Article 19), the prohibition of imprisonment for civil debt (Article 18) and the humane treatment of persons deprived from their liberty (Article 20). In other areas, the Charter innovates and appears to be ahead of other international instruments, by enshrining the rights of persons with mental or physical disabilities (Article 40) and also by outlawing violence against women and children in the family (Article 33, paragraph 2).

Looking at the foregoing, it could conclusively be said that the Arab Charter is an exhaustive bucket of rights! Nevertheless, let us look at some of the critiques of this Charter.

VII. Criticism of the Arab Charter

Now, the most important milestone that has been realized by this Charter is that after decades of gestation, finally the Arab states have adopted their own binding instrument on human rights. Having said that, the Arab Charter has been widely criticized for multiple ambiguities and deficiencies in the formulation of its Articles. Let us have a look at some of these.

The foremost criticism of the Arab Charter is that it does not provide any effective mechanism for anyone to seek any redress whatsoever against a violation of his/her human right. All it does is create an Arab Human Rights Committee entrusted only to receive governmental reports by States every three years on measures they have taken to give effect to the rights and freedoms recognized in this Charter and on the progress made towards the enjoyment thereof. Thereafter, the Charter provides that the Committee shall discuss the report, comment thereon and make the necessary recommendations.

Now, compared to the enforcement mechanisms provided by the European, Inter-American and the African systems, which have granted their supervising bodies the mandate to receive complaints from individuals, the solution adopted in the Arab Charter is the weakest and is indicative of a deeply-rooted distrust vis-‡-vis an effective human rights system.

Its other criticism stems from the deficiencies in formulation of its Articles. This is notably with respect to: (a) the right to equality between men and women, whereby Article 3 categorically recognizes the framework of positive discrimination established in favour of women by the Islamic Shariah, (b) the provision prohibiting capital punishment for those under 18 years of age, where by it uses the claw-back clause unless provided otherwise in national law, (c) the wording of the Preamble which says rejecting all forms of racism and Zionism which commentators argue equates Zionism to racism.

VIII. Conclusion

From the foregoing, it is clear that the Arab Charter is a positive step forward in line with the international human rights standards. However, given the absence of an effective enforcement mechanism and lacunae in drafting of its articles, questions still linger as to the effectiveness of such a Charter. Having said that, the initiative is commendable and must be strengthened further by actions of multiple stake-holders.

Reference

1. The Revised Arab Charter on Human Rights: A Step Forward, Mervat Rishmavi, Oxford University Press
2. The Major Regional Human Rights Instruments and the Mechanisms for their Implementation
3. The African Regional Human Rights System: 30 Years after the African Charter on Human and Peoples’ Rights, Martinus Nijhoff Publishers, Manisuli Ssenyonjo