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African Charter On Human And People's Rights: A Summary For Law Students

The journey of human civilizations has brought in drastic change with the passage of time. In most cases it is the past experiences that have shaped our present world. Similar has been the development of various kinds of rights across the globe. Amongst the many historical events that contributed to express the rise of people to claim their rightful share of rights in order to live a better life, contribution of certain events that took place on African soil must be recognized.

The event in Nairobi was one such event that strengthened the roots of human values and rights across the African continent. It was the "African Charter on Human and Peoples Rights" that will be discussed in this work, also depicting that good things don't come easy but are a result of extraordinary courage and sacrifice of the people. It was the problems that motivated common people to rise against arbitrary powers holders and bold decisions are taken.

The progress of human civilization has dwelled upon the greater community large number of gifts interestingly one of the most significant is merely conferred by reason being born a human. The beauty of such a privilege has been recognized through distant and distinct parts across the globe. In the ancient context what was believed to be natural has transformed today or widely recognized as Human Rights that are believed to be sine qua non for living a life with peace and harmony. The recent trend worldwide clearly backs the notion that their essence is fundamental and guaranteed by constitutions, therefore not an easy leaf to be turned.i.e., it's not easy for governments to escape responsibility if they decide to encroach upon certain rights that constitute necessary for humans to lead an orderly life.

The recognition that is bestowed upon dignity and value of live and its preservence is the basic or most common source for admiration of these rights of humans, "human rights" reflect the idea to live with fellow humans without encroaching upon others while respecting and adhering to globally recognized standards that many countries have enforced by subsequent legislations.

"Silence is foolish if we are wise, but wise if we are foolish." - Charles Caleb Colton [1]

It is necessary to stand up for enforcement and promotion of human rights across the globe because it concerns us all tied by the bond of humanity. It is a great task to tackle the odds of time but history has been evident howsoever big a task if tackled with a strong will nothing but success is the resulting outcome. In view of the same one must speak for the rights of people across the globe. It is the need of time that unity and solidarity towards this cause be taken to newer heights in order to maintain peace and order.

African Charter on Human and Peoples Rights

The African charter on human rights also known as "Banjul charter"[2] is an international Human Rights instrument that intends and aims to protect promote and preserve in the continent of African region the values associated with human rights. It was then African unity now renamed and replaced by the African Union. It was in the year 1979 when the head of state of different regions participated for the promotion and formulation committee for framing an instrument for the African continent just like as it was prevalent in Europe that is the European convention on human rights, also the American convention on human rights. It was during the later part that 18 assembly that formulated this draft document. In June 1981, this significant instrument was accepted in Nairobi which is a part of Kenya it holds distinction of being its largest city also.

It was the auspicious day of 21st October 1986 when this charter started functioning by virtue provision contained under article 63. It provided that a simple majority was required when the members of the organization agreed, after that was accepted by the secretary general in order to confirm the ratification. Thereafter, it would become applicable after 3 months would have passed. It is also worth mentioning that the day of acceptance for enforceability of the African charter became memorable ever since reflected also so by celebrating it as African Human Rights Day.

The Charter consists of a Preamble, 3 parts and 4 chapters and 68 articles in total. The Charter clearly reflects upon the ideas similar to those prescribed by the European and American system for creating a regional setup to ensure the rise and efficacy of human rights as inviolable feature in African context. Not only that have similarities to many previous instruments ensuring the right of citizen but is also unique in its own ways. It also recognizes the universally accepted Civil and political rights including the right to freedom from discrimination article 2 and article 18 subsection 3, equality is prescribed under article 3, the life and liberty is safeguarded by virtue of provisions contained in the article 4 whereas article 5 protects inherent dignity with a widened scope in many forms in day-to-day life.

The process regarding detention and arrest of persons and the necessary limit imposed under the Charter is provided within article 6. Article 7 and after 25 can be read in a manner to find out the right to fair trial. Various freedom regarding religion and to ensure it free and open provision exist for enforcement of the rights regarding religion only subject or restricted to ensure law and order. Within the restraints of law every individual is provided a powerful right to express opinions and also receive information by Article 9.

Right derived to form associations freely, subject to abiding by the law subject and obligations of solidarity as under article 29 is provided under Article 10.

The right of individuals to assemble which is dependent on the legislation providing for restraint in certain cases which may due to certain factors including the security of the country and to ensure that the right of others is not trampled upon by others exercising their rights is evident from power derived and limitation prescribed under article 11 of the charter.

If a person agrees to abide by the law made by the authorities concerned every individual has the right to enter but to leave or return to his country there were enjoying the freedom of movement under article 12.
Freedom to political participation is ensured by article 13 also there is a brief mention about access public services which is backed by equality before the law. In regard to you are right to property it may be refer to Article 14 which provides a guarantee however this Same may be subjective to the larger interest of community and public in large in case a person is to be deprived of the right to property.

Equal pay for equal work is strength to the people ensuring better conditions of work as well by provision contained under article 15. If one is to trace what would ensure one of the very significant aspects that is the right to health which is actually forming the backbone of any political or national structure across the globe it is one of the most prominent features to ensure and lead a good human life. So, the drafters of this special African document were careful enough to mention not only physical but mental health to address such a prominent question of vital significance therefore the same finds mention under Article 16 of the present charter under our study. This is in consonance with the spirit found from provisions found similarly across international charters in many parts of the world.

In the present modern-day scenario if a question arises as to what the most powerful is, it would not be surprising to find the answer to even the most challenging problem can be addressed through "education". It certainly is one of the most cherished rights that is available to people across the globe here in the African human rights article 17 gain greater significance not only the right to education also imposes a duty on the state to protect the moral and values of the society and its people.

It is very interesting to find note of the Charter prescribing duty upon the state to prevent any form of discrimination against women and children in consonance with international agreements and related aspects. Also, special consideration under clause 4 of article 16 is lead towards protecting and safeguarding the interest of the disabled in order to fulfill their aspiration and lead a normal life. Equality throughout ages and time has different according to different thinkers in the present document it is undoubtedly stated that everyone shall be equal therefore having time rights without any discrimination. The above notes have been depicted under article 19.

The freedom related to social economic and political status and openness as to one's choice has been promoted and respected. Small reflection of the early past is provided when forms of troubles faced by people due to activities of exploitation. Article 20 also ensures that help be provided to back and support the cause of the people when the intend to free themselves from the clutches of previously dominating powers.

Further, no person is restricted from using or spending his or her assets and resources. If situations arise when certain effect results into taking away from any person their wealth, necessary compensation has to be given to such affected people. At the same time the national interest on the basis of international obligations arising out of international law are respected. It also aims to ensure that the African countries within the Ambit of the present starter work together and contribute positively towards the Welfare of the people.

One of the propositions under article 21 relates to tackling with challenges such as monopoly or other methods which have a economic effect wherein, upon the people there the intention is two provide access to the people without hinderance to necessary resources and prevent any form of exploitation at the international level by any foreign power.

Development of the people in any of the forms be it economic social cultural and ensuring equality in enjoyment of common assets of human's and their requirements. It is also worth mentioning there is a duty to ensure development and its related right is made possible effectively. One of the main goals of any society or Nation is to protect its people from external as well as internal threats and ensure their security and well-being of its people while giving due respect to various International conventions especially the United Nations started and other principles with the African Unity decided to promote.

It is the beauty of certain provision which reflects the noble intention of cooperation and coordination between country in order to ensure our harmony and greater good of people by proper enforcement of human rights in the African nations. The right to asylum can also be traced under article 23 and to prevent its misuse there is expressly mentioned that such person who intends or is enjoying the right of asylum does not perform any activity or activities which challenge or target peace and harmony any other state which is party to the present African charter.

It is also clarified that no country who is a member of the present charter should allow the use of its land or territory for any activity that is prohibited or is of a nature that intends to strike terror across people and nations. Therefore, it is clearly evident the framers of the African charter were clear that no country who is a member indulgence or allows people to indulge in terrorist activities on any part belonging to such country. It is rather Pro peace document like other human right instrument across the globe.

In order to provide a favorable condition and environment for the development of all people article 24 was inserted. A very unique and striking feature of this chapter is contained under article 25 which Lays down that it is the duty of the member states to ensure or that the right as well as duties provided under the Charter are understood by the people which may be true any of the means publication teaching methodology or a combination of more than one method. This is a very beautiful expression where the intention is to make the beneficiaries of rights and duties aware of the provision and answering that this is not a paper tiger but a real game changer document intended to promote preserve and protect the invaluable human rights of the people.

One of the notable features of most countries in the modern times is a separation of powers and performance of different roles by different institutions independently and impartially. Therefore, article 26 clearly lays down duty of member states to ensure that's rights provided under this document are safeguarded by independent courts across member countries.

Not only Rights but Duties as well:

Chapter 2, deals with the duties starting from article 27 onwards. It is reflected from the provision that there shall be along with the rights as mentioned in chapter 1 certain duties the country, community, society, family and at a larger point towards the international level towards different countries. It may be right to say that while exercising one's rights there is a duty based upon the morality, security and greater good of the people at large must be respected. Article 28 reflects what is time and again repeatedly provided that there should not exist discrimination among people in their interaction among each other.

Broadly eight more duties are provided under article 29 which are as follows:
  • First, to work for the development of family, respect and perform necessary functions for their well-being.
  • Second, it is the duty of a person to contribute towards his or her country by both mental as well as physical capabilities that a person has developed over a period of time.
  • Third, duty of allegiance towards one's country.
  • Fourth, promote and make it stronger bond solidarity special even there is a threat to National Unity.
  • Fifth, support towards improving and making stronger the defence of the country by any contributions within the legally permissible mandates.
  • Sixth, to pay taxes and work to the best of one's capabilities to aid social and national development.
  • Seventh, in order to promote the larger interest and well-being of people and the society to protect, preserve and also make strong efforts to raise the African cultural values in different spheres of life.
  • Eighth, this is a significant duty specially targeted to increase the unity and capability of the African people and African Unity at large.

Establishment, organizational structure, election and tenure of the members African Commission on Human and People's Rights

Chapter 1 of part to provide certain measures in order to safeguard the rights that are to be bestowed upon the people by creation or establishment of a body. i.e., African Commission on human and people's rights. Article 30 has actually created and organ to foresee the implementation if the charter in letter and spirit amongst members to the charter.

Article 31 lays down the details for formality bi structure organization of the commission. It provides that the members will be from African country having high standards relating to human rights and special emphasis is to be given to persons with prior experience in the field of law. It will have 11 members having the necessary eligibility as provided under clause 1 article 31.

Under Article 32, 33 and 34 provisions relating to providing an order to maintain balance in the representation members from different states, the membership in the commission is restricted to not more than one person from one state. The procedure for election voting by secret ballot after the names of candidates nominated by different States is received and a list of the same is made. A maximum of only two candidate per State party to charter may be nominated. Interestingly if two candidates are nominated by a state it would be adequate qualification even if only one member is the national of the nominating state out of the two members.

The nomination regarding same is called upon by the secretary general and the list received containing names of nominated members shared with all the heads of state data party to the charter at least one month prior to dates fixed for election. The tenure of the members to the office in the commission shall be for a span of six years and also be eligible for re-election.

Before taking upon the post as a member of the commission making oath or declaration for performing duties. In case due to any reason there arises any e vacancy to the office of membership in the commission it shall be the duty of the chairman to inform the secretary general in that regard. The prior statement deals with resignation or death as a scenario however, a member may be removed from office if that person fails to perform is duty. All the payments and salaries off the officers employed by the commission appointed by the secretary general shall be made by the African Unity.

The tenure of the Chairman and Vice Chairman shall be for two years period and re-election is also permissible. It is allowed to formulate its own procedure. The minimum number of members to form quorum is seven. Special power is vested with the chairman in case a casting vote is required to settle any equilibrium arising due to equal votes. However, right to participation and vote is not provided to the secretary general but he is allowed to attend the meetings and can also speak if the chairman requests him to do so.

To maintain the efficient functioning its members are provided with similar immunities as given to diplomatic staff according to rules in that behalf. To make the necessary payments special mention is found for creation of a budget for the organization.

Human rights must not be symbolic in nature but should form the basic structure or bedrock foundation of any modern society across the globe. It must not only be cherished as an extraordinary gift for merely being born as humans but a direction to increase humanity amongst fellow human beings by respecting the right of other fellow humans just as would have been the case while enjoying one's own set of rights without having the fear to be constrained or trampled upon by others. In true essence it promotes peace and harmony across Nations without barriers of any kind. Sometimes it is not mainly documenting or fiction that is best depicted on paper but living values that a document inspires people the African charter on Human and peoples right is a beautifully drafted document which intends to act stronger than mere words of consolation to problems of human rights abuse in the African Unity.

Directives which the Commission intends to achieve Under Article 45:

  1. Primarily and most importantly, promote protect and preserve human and people's rights. Also, to pursue research to tackle problems regarding the same and to organized programs to make the people aware of their rights and duties by way of seminar and other methods of interaction with people
  2. Put forward suggestion's observations and recommendations to the challenges and problem especially legal to ensure all states can implement by way of law to promote rights.
  3. It also intends to broaden the relation between different states so that they cooperate and work together towards achieving a common goal with other states and also international institutions.
  4. One of the main functions of this Commission to make sure that subject to the provisions of this charter all rights granted to the people can be enforced.
  5. In case of a situation arising wherein there is a need to interpret any provision of this chart or is difficulty in that regard it is the duty of the commission to act and interpret which may be upon request by any party, institution which has power to do so but virtue of provisions under the Charter.
  6. In addition to the above-mentioned powers the commission can resort to any other action to perform any duty which may arise if so requested by the assembly of member states.

Procedure of Communication between State Parties and Tackling Issues:

Special provision is made under the Charter give reasonable opportunity to the member States if there is any reasonable apprehension that any other state is not following or has violated any of the provisions. The state that has such an opinion shall backed by its reasons send a communication to the secretary general and chairman. It is the responsibility of the answering state given writing within a. of span of three months with details mentioning the process followed or measures taken to solve the issues raised by enquiring member state.

If the provisions under article 47 are not complied by the state to which communication was addressed within the time span provided and their fails to come a solution between the two state parties. In order to break such a deadlock situation any party main address to the chairman such matter for the same.

Further, in addition to previous provisions party may also submit directly to the commission any of the matters. It is a very proper mechanism that the role of the commission its chairman and the secretary general come into play only when the parties have failed or the basic remedies not able to bring any solution, an exception to the statement is in cases when the commission consider it necessary and believes that unnecessary delays would be caused.

It is within the power of the commission to call for records of documents that it may consider necessary and relevant to deal with the matter at hand. While any proceeding is taking place before the commission the member states concerned at the right of a representation and also to submit arguments or contentions on their behalf orally or in writing.

It is the duty of the commission to reach an amicable solution respect to the right of human and people is of foremost importance. The decision of the commission on the basis of relevant information submitted shall be put forward in the form of a report which should be later forwarded to the Assembly of the members state of the African Union which are party to the present charter.

The commission is also free to put forward any recommendation or suggestions in the interest of protecting and preserving human rights relating to any issue with the members.

The power to prepare a list for any communication received before the commission shall be laid before start of each session and if a question arises communication should be considered or not it is done by voting resulting into simple majority.

This part ensures a system of joint effort as well as trust within the member states to this international charter amongst the African countries so that mutual efforts are made to prevent abusee and misadventure of rights guaranteed to the people. It is also open to peaceful methods of settlement amongst parties at first instance it is only then ordinarily that the commission intervenes, except for certain issues where immediate intervention is necessary that too within the ambit of powers provided under this African Charter.

Some of the conditions before determining any communication are as follows:
  • It mentions the name of the senders.
  • If it is that consider that the communication involved is by virtue of this charter acceptable.
  • If the document or communication is not inappropriately addressing any other state or member state.
  • Also, while determining whether to accept the information received it is kept note of that the information is not solely based through means of mass media. That is to and sure that only reliable and genuine concerns are dealt with.
  • It is also to be noted whether prior efforts have been made by the parties asking the commission to intervene as it is one of the prerequisites before accepting certain complaints. Only, exception to this principle is if the commission is of opinion that it would cause unjust delays.
  • That the communication made is not delayed under normal circumstances.
  • It is interesting to make note of point 7 article 56 that the commission shall not deal with any communication regarding which decision has been previously made according to international documents such as UN charter or this charter. This clearly reflects mutual respect towards other significantly important charter of human rights.

If at any moment serious issue of violation of right is brought to the notice and attention of the commission it shall be duty of the chairman to inform the member states and its heads respectively. Thereafter, the member state may put forward suggestion or request in order to facilitate information and enquiry of the alleged violation of human rights.

Certain safeguards to ensure privacy and confidentiality of the matter pending before the commission is also provided if situation demands. There is a greater role of the leaders of assembly it is stated that it requested upon to publish the report the chairman shall do so.

The importance of international law regarding Human Rights has been particularly recognized under chapter 4 mentioning the important principles and Organizations including African Unity. Necessary emphasis has been laid on instruments of the Universal Declaration of Human Rights[3] and international agreements binding countries in the African region.

In order to lay down rules reference may be made to other international conventions and principles subject to being recognized by the African Unity. At the same time value of value of judicial pronouncement as well as customary law has been recognized provided it is not in derogation to internationally accepted norms.

One of the notable and distinct features of the charter provide about mechanism to check ok on the progress that the member states are bound to perform being bound under this African charter. The progress is timely checked by mandating the submission ok reports mentioning about the necessary details reflecting what action all legislation and other measures happen taken by the member states who have recognized and agree to do follow the principles for promoting human rights. It is usually a practice that principles of international law are taken as a guiding light while framing domestic legislations to tackle the challenges that are faced which can be compared to dark areas which need light for course correction measures.

Membership Status of African States [4]

General Provisions for certain situations: (64-68)
  • It was the duty of the secretary general to convene first meeting of the organization after the commission was formed. According to the general provisions it is clear any other meeting after that would be held when convened by the chairman and it should meet once every year.
  • Provisions of the charter become applicable on the new joining member states after a period of three months has passed after ratifying the document and its deposition.
  • Additional scope is left open to include any other agreement or principles which may be required or deem to be necessary according to the need of the hour.
  • Transparency is also maintained while new members join or ratify to the charter as it is one of the important duties of the secretary general to bring to the attention of member states.
  • This charter may be amended if there is a need which is backed by formal return request in that behalf addressed to the secretary general. It shall be brought to the knowledge of the other members and heads of state that such a proposal has been made which shall be subjected to attaining simple majority from the members.
End-Notes:
  1. Charles Caleb Colton Quotes BrainyQuote, https://www.brainyquote.com/quotes/charles_caleb_colton_156478 (last visited Dec 9, 2020)
  2. African Charter on Human and Peoples Rights au.int, https://au.int/sites/default/files/treaties/36390-treaty- 0011_-_african_charter_on_human_and_peoples_rights_e.pdf (last visited Dec 8, 2020)
  3. Universal Declaration of Human Rights, United Nations, https://www.un.org/en/universal-declaration-human-rights/index.html (last visited Dec 08, 2020).
  4. African Commission on Human and Peoples' Rights achpr, https://achpr.org/legalinstruments/detail?id=72 (last visited Dec 8, 2020)

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