In commemoration of the 30th anniversary of the African Charter on Human and People’s Rights, one of the first judges of the African Court of Human and Peoples’ Rights and a participant in the Charter’s drafting, Judge Fatsah Ouguergouz gave a thoughtful and illuminating speech reviewing the document’s history and its place among other regional and international human rights instruments.
With regard to the political context at the time of the Charter’s drafting, Ouguergouz stated:
At the social level, there was a strong community spirit in Africa, upon which social structures were grounded that granted primacy to the group over the individual. At the economic level, Africa was in a state of economic under-development that there is no need to describe here. Finally, at the political level, the continent’s political regimes were often authoritarian, founded on a single-party system, and fiercely attached to the principle of national sovereignty.
Thus, the Committee of Experts had to take account of those three features of the African continent, and this may explain the physiognomy or the contents of the African Charter as it was adopted in 1981. For the African Charter, as a legal instrument, is both rich and poor at once: rich from a conceptual standpoint but relatively poor from a technical point of view.
Among the strengths of the Charter, Judge Ouguergouz highlighted the following:
Firstly, the instrument was the first (and so far the only) international treaty to enshrine three different categories of rights: civil and political rights (known as first-generation rights), economic, social and cultural rights (second-generation rights) and collective rights of solidarity (third-generation rights). My second observation is that the Charter was the first international treaty to enshrine the duties of the individual with such emphasis and detail (3 articles and no less than 11 paragraphs); to my knowledge, the only other standard-setting treaties in this area are the Arab Charter on Human Rights (2004) and, to a lesser extent, the American Convention on Human Rights (1969).
As to its weaknesses, he emphasized that Charter is not as strong as it could be because it: 1) does not guarantee certain rights protected by other instruments; 2) its protections are vaguely-phrased; 3) the limitations on civil and political rights in the Charter are also poorly defined; and, 4) six provisions reference “peoples’ rights” without defining “people”. Specifically, Judge Ouguergouz wrote:
Firstly, it behoves me to point out a certain number of omissions. The African Charter fails to guarantee certain rights enshrined by the International Charter of Human Rights and the American and European conventions, notably including: the right to privacy, the right to a nationality, the right to vote in regular elections, the right to found and join unions, equal protection for legitimate and natural children, the right to marriage with full consent of both parties, and the right to change religions. In addition, unlike the other two regional conventions, the African Charter contains no provisions on capital punishment, the prohibition of forced labour or the expulsion of nationals.
Secondly, it is important to note most of the rights guaranteed are couched in rather vague terms. For instance, the right to a fair trial is not formulated specifically enough (compare Article 7 with Article 14 of the second United Nations Covenant). The Charter does not provide for the right of detainees to be informed of the reasons for their detention, of their right to be rapidly brought before a judge, of their right to legally contest the grounds for their imprisonment, of their right to a public trial or of their right to appeal to a higher jurisdiction.
Thirdly, it should be underlined that the civil and political rights set forth in the Charter are subject to very vague limitation clauses. All civil and political rights guaranteed by the Charter are effectively limited in ways that are dangerous for the individual to the extent that it is stipulated that they are to be exercised within the framework of laws and regulations, with no further precision (compare, for instance, Article 9 on freedom of expression with Article 19 of the second United Nations Covenant on Civil and Political Rights). There is no specific description of the limitations (or ‘limitations’ on the limitations) such as can be found, for instance, in the aforementioned second Covenant (see for example Article 21) or in the European and American conventions on human rights, which provide that limitations on the protection of certain interests are necessary in a democratic society. To illustrate this point, without seeking to minimize the work done by the drafters of the African Charter, I can compare the state of completion of the individual rights enshrined in this instrument to that of a piece of raw ebony which the talented craftsmen of this beautiful West African region hew into magnificent carvings.
Fourthly, I would like to point out that the African Charter contains no fewer than six articles on peoples’ rights without defining what is meant by ‘people’. In other words, the Charter does not clearly identify the subject of the rights it guarantees. In fact, each of the six provisions may apply to a different reality; in the context of the African continent, four such realities could be defined in 1981: the people making up a State–such as the Gambian people, for instance; colonized peoples, such as the Saharaoui people today or the people of Zimbabwe at the time; oppressed peoples, like the South-African people at the time; and finally peoples that are integrated into States, i.e. ethnic groups, such as the Fulani, Toucouleur, Hausa or Yoruba. In the framework of the African Charter, the content of the notion of ‘people’ changes from one provision to another, rather like a chameleon changes colours depending on its environment or like a beautiful carving of which every facet represents a different reality.
Allow me to reassure you; this technical weakness of the African Charter is no coincidence and it is certainly not the result of poor drafting. The truth is that the omissions and imperfections characterizing the rights it enshrines were deliberately intended by the drafters of the Charter.
He then went on to describe how the Charter has evolved since its drafting, through a dynamic interpretation of its provisions and use of articles 60 and 61 of the Charter, which allow the African Commission to consider other sources of international law (unlike the African Court, which is authorized to directly apply such sources of human rights obligations ratified by the States concerned).