Since 1986 when the African Charter on Human and Peoples’ Rights (the Charter) came into force, attention and criticism was drawn towards this new-born regional protection mechanism of human rights. Some rushed into questioning the prospects of implementing the Charter; others labeled its provisions as ineffective and bias while some observed the positive contributions it makes to the general human rights discourse. In an attempt to address some of the Charter’s uncommon features, I will examine both the positive and negative sides of the selected aspects and outline the value of these peculiarities in relation to the global human rights system.
The Charter includes civil and political rights along with economical, social and cultural rights (ESC). The organization in one document of what is perceived to be two separate sets of rules denotes a positive feature of the Charter applauded by many. The Charter also includes individual duties but the main focus of this argument will be ESC rights. Although ESC rights in the Charter have been criticized for being vague and literally insufficient and the Commission mostly deals with violations of civil and political rights, this should not weight against the strong value of a systematic inclusion of these rights in the Charter. The ESC rights expressively protected by the Charter (articles 14 to 17) are the right to property, the right to work, the right to health and education. In SERAC v. Nigeria the Commission decided that a right to shelter or housing can be derived from the mutual meaning of articles 14, 16 and 18 and states that” the right to property, and the protection accorded to the family forbids the wanton destruction of shelter’’. In the same case, the Commission decided that the right to food is related and adjacent to human dignity and it is vital for the possible realization of the right to life, health and education thus, being implicitly protected by the Charter.
Of tremendous importance is also the fact that in Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah vs Zaire the Commission referred to violations of ESC rights as ‘’serious and massive’’, terms that usually apply to civil and political rights violations. This clearly points towards the fact that the Commission considers both sets of rules as equally important and the Charter is committed to the advancement and enforcement of ESC rights.
Thus, the inclusion of ESC rights in the Charter points towards a strengthening of the indivisibility of human rights. The historical dissociation between civil and political rights and ESC rights and their adoption in different instruments as the ICCPR and the ICESCR or ECHR and European Social Charter has affected the notion of indivisibility. ESC rights have been regarded as less domestically justiciable and as imposing progressive and not immediate duties. The protection of civil and political rights by human rights treaty bodies via individual complaints has been incomparably stronger than that of ESC rights. The common and equal protection of ESC rights and civil and political rights by the African Charter and the possibility of individuals to directly allege violations (as opposed for example to the collective complaint system of the European Committee of Social Rights) send a significant message to the global human rights system. All that combined with a wide locus standi requirement to file complaints with the Commission provide a model for an interdependent and immediate realization of human rights as indivisible rights as expressed in the Vienna Declaration.
A second exclusive feature of the Charter that I would like to point out is the absence of a derogation clause. Unlike the ICCPR (article 4), ECHR (article 15) and ACHR (article 27), the African Charter does not provide member States with the possibility of suspending human rights in exceptional circumstances. This was reaffirmed by the Commission in Media Rights Agenda and Others v. Nigeria that expresses: “limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.” A small part of the doctrine understands that the absence of a clause does not amount to an express prohibition but the majority concludes that the Commission stands against derogations. This particular feature can be observed from two angles: from a positive angle, given the immense requirements to legitimately declare a state of emergency and derogate (inter alia qualifications of severity, temporariness, notification, proportionality) the prohibition of derogation seems to take off the table all these subjective criteria and simplify the entire human rights system. On the negative side, the contradiction between the ICCPR and African Charter may render fragmentation consequences. There is no express conflict of norms but a difference in the mentality of the two instruments might create an ideological tension and uncertainty of practice. Interestingly enough, the ICESCR does not contain a derogation clause, proving thus the bond between the Charter and ESC rights. Although it might not be an entirely positive feature, the absence of a derogation clause reflects a stronger commitment to human rights, disregarding force majeure and the external status quo. If we were to reflect upon the spirit and philosophy of human rights we would most likely realize that ‘’the incorporation of derogation clauses in human rights treaties does not advance the realization of human rights’’.
The last unique feature I would like to mention is article 20(2) of the Charter, also known as the “right to resist”. It has no analogue provision in international law and inter alia it refers to resisting oppression, occupation or simply an abuse of power. It is a secondary right in the sense that it derives from the right to self-determination and can be triggered by systematic violations of human rights, coup d’état or economic domination that would affect self-determination. Its legitimacy and compliance with international law are highly disputed: some understand that such a right can be implicitly understood to exist in the ICCPR and UDHR preamble; others see in the silentio legis and express prohibition to resist while some rely on customary law to uphold the legitimacy of this provision. UN General Assembly Res. 2625 also states that peoples have the right to receive assistance in their actions of resistance. Article 20(2) extends the right to resist not only to colonized peoples but peoples facing any type of oppression and allows for the use of “any means’’ of resistance as long as they are recognized by the “international community”. The negative implications of the provisions are clearly related to the legal uncertainty that these terms entail, as it is not clear what type of oppression should be resisted nor which norms of international law should be observed when exercising this right. Given the fact that the application of this provision is most likely triggered by a conflictive situation (either foreign intervention or internal self-determination) the lack of preciseness may be understood to authorize an illegitimate use of force. A positive connotation of the provision is that if interpreted and developed diligently, the provision can reform the understanding we have of the right to self-determination. Considering recent events such as Catalonia’s pursue of independence and the crisis in Ukraine, a possible inclusion of economical self-determination along with a broad-spectrum elucidation of the notion might complete the concept and make it contemporary applicable, participating thus in the inception of a neoteric human rights regime.