By

Désiré BIGIRIMANA

Restrictions in the Human Rights Protection System in Africa

I. General Introduction

The African human rights system is built on the African Charter adopted in 1981 and entered

into force in 1986. The Charter was followed by the Protocol on the establishment of the African

Court on Human and Peoples’ Rights which was adopted in 1998 and entered into force in 2004.

Before the adoption of the African Charter in 1981, human rights instruments and organs that

they created were for many years on the periphery of the political institutions under which they

fell.1 Thus, the Organization of African Unity (OAU) Charter for instance did not contain any

specific provision for the protection of the rights of individuals. It is because the emphasis in

1963 was on the State rather than the peoples. Rather, the OAU Charter provisions emphasized

on issues such as the non-interference in internal affairs, sovereign equality of States, the fight

against neo-colonialism, self-determination in the State context and the peaceful settlement of

disputes.2 That is why Julius Nyerere, the former President of the United Republic of Tanzania

and one of the founding fathers of OAU, has pointed out that “the OAU Charter spoke for the

African peoples still under colonialism or racial domination, but the countries emerged to

nationhood, the Charter stood for the protection of their Heads of State and served as a trade

union which protected them. In other words, the OAU appears to be an institution of the African

Heads of State, by the Heads of State and for the Heads of State.”3

However, just as there has been a closer relationship between the European Convention on

Human Rights (ECHR) and the European Union (EU), the American Convention and the

Organization of American States (OAS), so the African political organization, OAU, which was

already transformed into the African Union (AU), illustrated closer attention to human rights as

falling within its remit4. In addition, the process of raising awareness orchestrated by certain

Non-Governmental Organizations (NGOs), including some African ones, as well as many United

1Euwunetie N. & Alemayehu A., (2009), The African Human Rights Law Teaching Material, Justice and Legal

System Research, p.12 2Okere Obinna B., (1984), “The Protection of Human Rights in Africa and the African Charter on Human and

Peoples’Rights” in Human Rights Quarterly, Vol.6, No 2, The Johns Hopkins University Press, p.142 3Euwunetie N. & Alemayehu A ., (2009), The African Human Rights Law Teaching Material, op.cit, p.13

4Makau wa Mutua, (1999), The African Human Rights System: A Critical Evaluation, p.5

Nations (UN) initiatives contributed substantially to the creation of a favorable climate to

nurture the idea of regulating human rights in Africa.5

It is in such a favorable context that OAU Heads of State and Government met in their Sixteenth

Ordinary Session held in Monrovia, Liberia, from 17th

to 20th

July1979 and took the decision to

prepare a preliminary draft on the African Charter on Human and Peoples’ Rights which would

provide for the establishment of bodies to promote and protect human and peoples’ rights.6 Such

a decision was taken in line with the letter and the spirit of the OAU Charter which had

stipulated that “freedom, equality, justice and dignity are essential objectives for the achievement

of the legitimate aspirations of the African peoples”7 and which had acknowledged the human

rights principles in both the UN Charter and the Universal Declaration of Human Rights

(UDHR).8 Thus, the first African human rights instrument, i.e, the African Charter on Human

and Peoples’ Rights was adopted by the OAU in 1981, ratified and entered into force in 1986.9

Although the African Charter was ratified and the African Commission created to enforce the

provisions of the Charter, the African continent continued to face serious human rights

violations. For example, the massive violations of human rights such as the 1994 genocide in

Rwanda were the most vivid reminder of the urgent need to strengthen the OAU mechanism to

respect human rights for all throughout the African continent.10

Excessive human rights

violations proved that the African human rights system was challenged by the absence of a legal

instrument creating a judicial body to complement the Banjul Commission in its protective

5Makau wa Mutua, (1993), “The African Human Rights System in a Comparative Perspective” in Revue of the

African Commission on Human and Peoples’ Rights, pp.5-7 6 See Preamble of the African Charter on Human and Peoples’ Rights, 1981

7 Ibid. Also see the Preamble of the OAU Charter, 1963. See Euwunetie N. & Alemayehu A., (2009), The African

Human Rights Law Teaching Material, op cit., p.8 8 Article 2 (1) (e) of the OAU Charter, 1963

9The African Charter was adopted in 1981 by the 18

th Assembly of Heads of State and Government of the OAU, the

high official body of African States. It is also known as the Banjul Charter because a final draft of it was produced in

Banjul, the capital of the Gambia where the African Commission on Human and Peoples’ Rights has its

headquarters. See Makau wa Mutua, (1999), op.cit, p.1. See also Buergenthal T., Shelton D. &Stewart D., (eds),

(2002), International Human Rights, USA, West Group, pp.282-285. For more details on the African Charter on

Human and Peoples’ Rights, read Mbaye K., The African Charter on Human and Peoples’ Rights, p.1. Read also Oji

Umorzurike U., (1997), The African Charter on Human and Peoples’ Rights. Also read Ramcharan, (1992), The

Travaux Préparatoires of the African Commission on Human and Peoples’ Rights, p.13 and Gittleman, (1982), The

African Charter on Human and Peoples’ Rights: A Legal Analysis, p.22 10

Heyns C. & Killander, M., (eds), (2007), Compendium of Key Human Rights Documents of the African Union,

Pretoria University Law Press, Pretoria, p.vi

mandate.11

Human rights actors thought that the establishment of an African Court on Human

and Peoples’ Rights would be a solution to a series of weaknesses of the African Commission.

The European and the Inter-American human rights systems gave those actors the impression

that an African human rights Court was an essential or indispensable component of an effective

regime for the protection of human rights in Africa. The push by human rights actors for a

human rights Court in Africa had the motto to correct some of the more glaring failures of the

African system which still was built on the African Charter and the Banjul Commission.

In 1998, the Protocol to the African Charter on Human and Peoples’ Rights establishing the

African Court on Human and Peoples’ Rights was adopted to complement the protective

mandate of the Banjul Commission but the goal to correct the failures of the African human

rights system has not been achieved so far and the African human rights system remains with

some restrictions which hinder the enjoyment of human rights on the continent.

Those restrictions to the enjoyment of human rights are addressed in this paper. They may be

classified into two categories: first, there are restrictions which are found in the Banjul Charter

such as the clawback clauses, the exaggeration of the language of the duties, the ineffectiveness

in monitoring the implentation of the Charter provisions, the ineffectiveness in the enforcement

of the Commission decisions and the omission of certain rights in the Charter; second, there are

restrictions which are found in the Protocol establishing the African Court on Human and

Peoples’ Rights such as article 34 (6) which denies individuals and NGOs to have direct access

to the Court unless a clear declaration is made by a State to allow individual communications,

and the restriction due to article 31 which makes the enforcement of the Court judgments to

depend upon the political will of the AU Assembly.

The paper opens by stating the problem for the enjoyment of human rights in the Africa. It goes

further to the goal to carry out this research before it shows the salient restrictions scattered in

the basic human rights instruments in Africa. After a brief conclusion, this paper winds up by

making a series of recommendations in order to deal with restrictions in both the African Charter

11

See Articles 2 and 8 of the Protocol on the establishment of the African Court on Human and Peoples’ Rights. See

also Makau wa Mutua, (1999), 0p.cit, p.2. See also Heyns C. &Killander M., (2007), Africa in International Human

Rights Textbooks,p.2

on Human and People’s Rights and the Protocol establishing the African Court on Human and

Peoples’ Rights.

II. Statement of the Problem

Despite number of positive aspects that are found in it such as the human rights system that

proclaims not only rights but also duties, that introduces the concept of peoples’ rights and

codifies generations of human rights into a unique legal instrument, i.e the Banjul Charter,12

the

African human rights system has the problem to allow the African States to impose very

extensive restrictions on the exercise of the rights it recognizes and is supposed to protect.13

III. Purpose of the Paper

The creation of the African Commission and instauration of the African Court on Human and

peoples’ Rights are important steps in the creation of a system to promote and protect human

rights in Africa. Having the system in place is one thing but having the system which is dynamic

is another thing needed for the African human rights system in place to be efficient14

. This paper

purports to show shortcomings that hamper the performance of the African human rights system

and intends to suggest some possible solutions to those shortcomings for the African system of

human rights to be efficient and effective. In this paper, shortcomings that hamper the human

rights enjoyment are referred to as restrictions.

IV. Restrictions in the African Human Rights System.

International,15

regional16

and national17

human rights instruments may comprise restrictions on

the enjoyment of human rights. This shows that human rights restrictions are not exclusively

embodied in the African human rights instruments. However, what is required for any human

rights restriction and which is mainly lacking in the African Charter and the Protocol to the 12

Buergenthal T., Shelton D., &Stewart D., (eds), (2002), op. cit, p.284 13

Flinterman & Ankumah, “The African Charter on Human and Peoples’ Rights” in Hannum H., (ed), (1999), Guide

to International Human Rights Practice, p.163 14

Referred to by Desmond Mpilo Tutu, Archbishop Emeritus of Cape Town in Bösl A. & Diescho J.(eds.),

(2009),Human Rights in Africa. Legal Perspectives on their Protection and Promotion, Konrad Adenauer Stiftung,

p.v 15

Article 9 of the International Covenant on Civil and Political Rights, 1966 16

Article 7 (2) of the Pact of San José, Costa Rica or the American Convention on Human Rights 17

Article 21 (1) of the Constitution of the United Republic of Tanzania, 1977. See also article 19 of the Constitution

of the Republic of Burundi, 2005

African Charter is that the restriction responds to the test of proportionality, serves a legitimate

purpose and a social interest, and is justified in a democratic society.

In the following developments, we are going to see some of the restrictions that are deemed to be

salient in both the Banjul Charter and the Protocol on the establishment of the African Court on

Human and Peoples’ Rights.

1. African Charter on Human and Peoples’ Rights

As already stated in the introduction, this section discusses restrictions to the enjoyment of

human rights in Africa such as clawback clauses, exaggeration of the language of the duties,

ineffectiveness in monitoring the implementation of the provisions of the Charter, ineffectiveness

in the enforcement of the decisions of the Commission, and the omission of certain rights in the

African Charter.

A. Clawback Clauses in the African Charter

The Banjul Charter has its distinguishing shortcomings and imperfections vis-à-vis other human

rights instruments. Thus, the substantive provisions of the African Charter are equivocally

phrased or they use very general terms which may give rise to varying interpretations and

avoidance of the obligations under the Charter. Hence, the extensive use of clawback clauses

seems to make the enforcement of a right dependent on municipal laws or the discretion of

national authorities.18

The phrase “clawback clauses” has been used to generally refer to those provisions of the

African Charter that tend to permanently limit some of the rights guaranteed under the Charter.19

They do not qualify as outright derogation clauses that are found in other international human

rights instruments. They rather qualify the enjoyment of the right as contingent upon other

notions of State prescription. They can have the effect of restricting a specific right in question in

normal circumstances so long as a national law is passed to that effect20

.Therefore, a number of

18

See articles 8 to 13 of the African Charter on Human and Peoples’ Rights,1981 19

For clawback clauses in the African Charter, see again provisions of articles 8 to 13 of the African Charter on

Human and Peoples’ Rights,1981 20

Euwunetie N. & Alemayehu A ., (2009), op.cit, p. 92

civil and political rights are limited in the Charter by terms such as “except for reasons and

conditions previously laid down by law”21

, “subject to law and order”22

, or “within the law”23

.

One can agree with Makau Wa Mutua, Nega Euwunetie and Admasu Alemayehu’s observation

that the effect of clawback clauses as expressed in the African Charter is that it seriously

emasculates the effectiveness of the Charter as well as its uniform application by Member States.

This is because instead of the African Charter having primacy, the various national laws of States

Parties actually assume a primary place. The effectiveness of the Charter will thus be reduced,

since it would appear to be subject to national standards as laid down by domestic law which can

be laws that are made to validate acts of violation deliberately embarked upon by African States.

While saying that clawback clauses are distinctive features of the African Charter, it is however

true that instruments of other human rights systems have also incorporated clawback clauses. For

instance, clawback clauses can be seen in the European Convention on Human Rights where the

right to freedom of expression may be subject to such formalities, conditions, restrictions or

penalties as are prescribed by the law and are necessary in a democratic society.24

But the

difference between the African system and the European system is that the latter goes on to detail

the limit of the clawback (for instance by mentioning words like “… necessary in a democratic

society”) while in the African Charter , the clawback clauses are left too broad and their

vagueness allows the human rights infringement by African States.

However, for any vague provision in the Charter, the African Commission can use its function

of interpretation of the Charter25

in order to assert the supremacy of international human rights as

this was the case in the matter Civil Liberties Organization v Nigeria, regarding freedom of

association whereby the African Commission held that “… in regulating the use of this right, the

competent authorities should not enact provisions which should limit the exercise of this

21 Article 6 of the African Charter on Human and Peoples’ Rights, 1981 22

Article 8 of the African Charter on Human and Peoples’ Rights, 1981 23

Article 9 of the African Charter on Human and Peoples’ Rights, 1981 24

Article 10 (2) of the European Convention on Human Rights , 1950 25

Article 45 (3) of the African Charter on Human and Peoples’ Rights, 1981

freedom. The competent authorities should not override constitutional provisions or undermine

fundamental rights guaranteed by the constitution and international human rights standards.26

B. Exaggeration of the Language of Duties

The language of the duties in the African Charter appears in articles 27 to 29. In this instrument,

duties are imposed on the individual towards his or her family and society, the State and other

legally recognized communities and the international community.27

They are also imposed when

an individual is called upon to exercise his or her rights with due regard to the rights of others,

collective security, morality and common interest.28

Makau Wa Mutua however considers the existence of duties to be the Charter’s most radical

contribution to human rights law. He therefore states that the African Charter takes the view that

individual rights cannot make sense in a social and political vacuum, unless they are coupled

with duties on individuals. For him, the Charter argues that the individual egoist is not the center

of the moral universe. Thus the Charter seeks to balance the rights of the individual with those of

the community and political society through the imposition of duties on the individual.29

Pityana,

the former Commissioner of the African Commission, joins Makau Wa Mutua and holds the

view that far from duties creating an environment for a gratuitous invasion of rights, they should

be understood as reinforcing rights.

Like clawback clauses, the inclusion of duties in international human rights instruments is not

unique to the African Charter. Thus, we can find duties in the American Declaration on the

Rights and Duties of Man and the American Convention on Human Rights.30

The language of

the duties is also found in both the International Covenant on Civil and Political Rights (ICCPR)

26 Civil Liberties Organization v Nigeria in 8

th Annual Activity Report : Compilation 1994–2001, IHRDA, Banjul

2002, pp.200-202 27

Article 27 (1) of the African Charter on Human and Peoples’ Rights, 1981 28

Article 27 (2) of the African Charter on Human and Peoples’ Rights, 1981 29

See Makau Wa Mutua, (1999), op.cit, p.8. 30

For example duties are found in the American Declaration on the Rights and Duties of Man, Chapter V. We can

also find duties in the American Convention on Human Rights which was signed in 1969 and entered into force in

1978. Both the American Declaration on the Rights and Duties of Man and the American Convention on Human

Rights predate the African Charter.

and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the

UDHR.31

Nevertheless, other international instruments do not stress duties as it appears in the African

Charter. The American Convention on Human Rights for instance does not place a strong

emphasis on duties32

while the African Charter is the first human rights instrument to articulate

the concept of duties in a meaningful way.33

Thus, the researcher shares Sheila’s point of view

which holds that the imposition of duties on the individual in the African Charter is viewed as

giving the State the opportunity on a golden platter to restrict human rights.34

Buergenthal,

Shelton and Stewart buy also Sheila’s idea. They look at the duty as the restriction on the

enjoyment of the rights.35

C. Ineffectiveness in the Monitoring and Implementation of Provisions of the

Charter

As a way to monitor the States compliance with the provisions of the Banjul Charter and their

implementation, States are required to submit every two years a report on the legislative or other

measures that they have taken with a view to giving effect to the rights and freedoms enumerated

in it.36

However, the Charter does not indicate to what body the reports are to be submitted, how

and with which goal the reports should be evaluated.37

In addition, the Charter does not show

what actions should be taken if after such an evaluation a State is found to have infringed upon

the rights of its citizens. Arguing on basis of the provisions of article 62 of the Charter, the

researcher holds the view that, not only the report submission is purposeless but also there is

nothing objective to expect from a State’s report. For example, a State cannot be reporting itself

31

See for example Preambles of the two International Covenants (1966), common par. 1 and article 29 of the

Universal Declaration on Human Rights, 1948 32

Article 32 of American Convention on Human Rights, 1969 33

Igange Wa Igange Jean Désiré, (2010), The African Human Rights System: Challenges and Prospects, LLD

Thesis, University of South Africa, p.144 34

Sheila B.K, (eds), (2009) “Major African Legal Instruments” in Bösl A. & Diescho J., op.cit. p.171 35

Buergenthal T., Shelton D., & Stewart D., (eds), (2002), op.cit, p.291. See also Makau Wa Mutua, (1995), The

Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, p.35 36

Article 62 of the African Charter on Human and Peoples’ Rights, 1981 37

Makau Wa Mutua, (1999), op.cit, p.20

what it has done and objectively indicates at the same time where it failed to comply with the

provisions of the Charter and subsequently violated human rights.

The Charter also provides that when the African Commission is considering a matter brought to

it by a State, the latter may be represented and may submit written or oral representation.38

When

all the necessary information has been obtained from the States concerned and other sources, and

after having used all appropriate means to reach amicable solution, the Commission prepares a

report sent to the concerned States and communicated to the AU Assembly39

with such

recommendations as the Commission deems useful.40

It is the researcher’s view that, while reporting to States concerned and the AU Assembly, the

Commission is seeking the implementation of its decisions. Thus, the researcher argues that there

is ineffectiveness in the implementation or enforcement of the decisions of the Commission

which does not have its own way to directly enforce its decisions without calling upon political

organs. In such a case, if the victim of the violations is an individual, the Commission is not in a

position to ensure that the States gives the compensation as this may be required by the decision

of the Commission. This is likely to happen in instances where a State is found to have violated

guaranteed rights of its citizens. At this level, the researcher agrees with Viljoen’s view. In fact,

Viljoen asserts that although the violation of the principle “Pacta Sunt Servanta” is common in

international law and the non compliance with the decisions is a universal concern in that even

other instruments including UN based human rights instruments are mocked by States, the

problem with the African Commission is that the Charter denies it teeth with which to bite those

found to have flouted it.41

The ineffectiveness of the decision enforcement under the Charter is more salient when the

Commission has already deliberated and noted that one or more communications apparently

relate to special cases which reveal the existence of a series of serious and massive violations of

38

Article 51 (2) of the African Charter on Human and Peoples’ Rights, 1981 39

Article 52 of the African Charter on Human and Peoples’ Rights, 1981 40

Article 53 of the African Charter on Human and Peoples’ Rights, 1981 41

Viljoen J., (2000), “States Reporting under the African Charter on human and Peoples’ Rights: A Boost from the

South”, p.44 in Journal of the African Law, p.110

human and peoples’ rights.42

In such a case, what the Commission can only do is to draw the

attention of the Assembly of Heads of State and Government which, in return, requests the

Commission to undertake an in-depth study of these cases and make a factual report

accompanied with its finding and recommendations.43

Even a case of emergency duly noticed by

the Commission is to be submitted to the Chairperson of the Assembly who may request an in-

depth study in accordance with the provisions of article 58 (3). The researcher is of the opinion

that when the Commission has already deliberated on a communication and noted the existence

of serious and massive violations of human rights, the request by the Assembly for more detailed

studies, factual report, findings and recommendations may only amount in deteriorating and

worsening the already vulnerable human rights situation.

Moreover, the researcher opines that the implementation of the provisions of the Charter and the

enforcement of the Commission decisions are likely limited to drawing attention, reporting and

conducting in-depth studies by the Commission. If the latter can come up with recommendations,

they are subject to a political will which may hamper or delay their effective implementation.

D. Omission of certain Rights in the Banjul Charter

The other critical aspect of the African Charter is that it does not clearly recognize several human

rights which are important in other human rights systems. Without presenting an exhaustive list

of these missing rights in the Banjul Charter, the researcher mentions the right to privacy44

, the

right to vote, the right to be elected to public office in periodic elections and the prohibition

against and forced or compulsory labor.45

One can contend that the right to vote and the right to

be elected to public office in periodic elections are enshrined in the Charter’s guarantee of the

right to political participation.46

If this can be an argument to justify the absence of those rights

in the African Charter, the researcher argues that the issue is again the vagueness of some

provisions of the Charter as this has been already stated in case of clawback clauses.

42

Article 58 (1) of the African Charter on Human and Peoples’ Rights, 1981 43

Article 58 (2) of the African Charter on Human and Peoples’ Rights, 1981 44

Article 8 of the European Convention on Human Rights, 1950 45

Article 4 (2) and (3) of the European Convention on Human Rights, 1950 46

Article 13 (1) of the African Charter on Human and Peoples’ Rights, 1981

2. Protocol on the Establishment of the African Court on Human and Peoples’

Rights

In this human rights instrument, the first restriction is seen through article 34 (6) which relates to

the denial of individual petitions before the Court when their States have not made a clear

declaration to allow individual access to the Court. The second restriction to be dealt with in the

framework of this research is found in article 31 which relates to the enforcement of the Court

decisions.

A. Individual complaints under the Protocol on the Establishment of the

African Court on Human and Peoples’ Rights

While the Court was expected to complement the Commission47

, it however duplicated the

Commission weaknesses.48

The Protocol serious shortcoming relates to the limitation of access

placed on individuals and NGOs.49

These two cannot lodge a case against a State unless two

conditions are met: first, the Court has discretion to grant or deny such access; 50

second, at the

time of ratification of the Protocol or thereafter, the State must make a declaration to accept the

jurisdiction of the Court in case NGOs with the observer status before the African Commission

and individuals institute cases directly before it.

Nevertheless, entities like the African Commission, States Parties and African intergovernmental

organizations enjoy automatic access to the Court once a State ratifies the Protocol.51

For the

researcher, it is surprising to see that priority to have access to the Court is given to the African

Commission, intergovernmental organizations, or States Parties as if they were prior users of the

Court while the rights the Court purports to protect are inherent to individuals who, by the way,

are mostly victims of public entities abuse.

47

Articles 2 and 8 of the Protocol on the establishment of the African Court on Human and Peoples’ Rights, 1998 48

Makau Wa Mutua, (1999), op.cit, p.30 49

Article 5 of the Protocol on the establishment of the African Court on Human and Peoples’ Rights, 1998

See also Makau Wa Mutua, (1999), op.cit, p.28 50

Article 5(3) of the Protocol on the establishment of the African Court on Human and Peoples’ Rights provides that

the Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the African

Commission and individuals to institute cases directly before it. 51

Articles 5 (1) and (2) of the Protocol on the Establishment of the African Court on Human and Peoples’ Rights,

1998

Furthermore, in the context whereby a small number of African States have made the required

declaration while violations of human rights increase exponentially on the African continent, the

researcher opines that the African Court on Human and Peoples’ Rights should not, in most of

the communications brought to it, enjoy the only examination of admissibility and

inadmissibility of applications on basis of article 34 (6).52

There still is the need for it to perform

efficiently its protective mandate so as to complement effectively the African Commission in the

protection of human rights in Africa.

B. Enforcement of the Court’s decisions

The Court judgments are final and without appeal.53

Its decisions are binding on States.54

While

the report of the Commission is biennial, the Court submits its annual report to the AU. The

Court report specifically lists States which have not complied with its judgments.55

This is a

shaming tactic to bring States to comply with the judgments of the Court. At this level, one can

see that the Court, which was expected to complement the Commission and correct its protective

mandate failures, uses the same procedure like the Commission to enforce its decisions.

As such, the execution of the Court judgments is subject to the will of the AU Assembly. Again,

as in the case of the decisions by the Commission, the enforcement of the judicial decisions is

left to a purely political body and this affects the Court efficacy in protecting human rights.

52

For more details about admissibility of cases before the African Court on Human and Peoples’ Rights, one can

read for example cases like Michelot Yogogombaye v. the Republic of Senegal (the very first case to be dealt by the

Court) and Femi Falana v. the African Union 53

Article 28 (2) of the Protocol on the establishment of the African Court on Human and Peoples’ Rights,1998 54

Article 30 of the Protocol on the establishment of the African Court on Human and Peoples’ Rights,1998 55

Article 31 of the Protocol on the establishment of the African Court on Human and Peoples’ Rights,1998

V. Conclusion and Recommendations

1. Conclusion

Human rights violations throughout the world inspired the creation of legal international,

regional and sub- regional instruments so as to curb such violations.

To that end, at the UN level, the Bill of Rights encompassing the Universal Declaration on

Human Rights, the ICCPR and its two Additional Protocols, and the ICESCR were put into

place. The oldest regional human rights system is the European one which came up with the

European Convention on Human Rights in 1950 and its subsequent Protocols. Later on, in the

1960s, the American continent set up its human rights system with American specifics as

enshrined in the American Declaration on the Rights and Duties of Man and the American

Convention on Human Rights. In the 1980s, the youngest human right system, i.e., the African

system, on which focused this paper, took the example of the then existing human rights systems

and was born with its typically African instruments to respond to the human rights needs specific

to the African context.

The then OAU, as a continental political body, facilitated the negotiations and the conclusion of

those African human rights instruments by Member States. The adoption of the Banjul Charter in

1981 was followed one year later by the instauration of the African Commission.

Due to some normative and institutional imperfections that we called restrictions in this paper,

the African human rights system could not, on the basis of the African Charter, fulfill its

promises in terms of protection of human rights on the African continent. It was against that

background that the African human rights system was endowed with the Protocol on the

establishment of the African Court on Human and Peoples’ Rights with the view to

complementing the African Commission in its protective mandate.

As time went on, it was discovered that the new body didn’t do much to correct the Commission

weaknesses and subsequently to straighten up the African human rights system. As shown in the

paper, one can agree with a number of literatures on human rights in Africa that the Protocol on

the establishment of the African Court on Human and Peoples’ Rights duplicated the weaknesses

in the Charter.

2. Recommendations

Before we wind up this paper, we deem it worthy to put forward some recommendations. First,

the African Commission needs to make a liberal interpretation when it has before it a case which

relates to restrictions scattered in various articles of the Charter. The Commission power to

interpret vague provisions of the Charter is conferred upon it by the provisions of article 45.

Such liberal interpretation of the Commission would neutralize the restrictions which are

underling in the Charter.

Second, like the Court empowerment under article 27 (2) of the Protocol, the Commission needs

to be empowered to adopt provisional measures in case it noted serious human rights violations.

This would avoid irreparable harm to persons when the Commission is carrying out the in-depth

studies recommended by the Assembly in accordance with the provisions of article 58 (2) of the

Charter.

Third, for the empowerment of the Commission to be possible, the African Charter needs to be

amended in light of the provisions of its article 68.

Fourth, since individuals are mostly victims of human rights violations, the Court effective

protection of human rights is not possible within a context which is likely to deny individuals’

access to the Court. Therefore, the Court can use the power conferred upon it by article 35 of the

Protocol to propose, through the AU Chairperson of the Commission, the amendment of the

Protocol especially the provisions of article 34 (6). This would allow individuals and NGOs, as

specified under article 5 (3) of the Protocol, to have direct access to the Court provided that they

abide by the obligation to exhaust local remedies when they are available, accessible and

effective.

Fifth and finally, the African Court should, in the meanwhile, continue the sensitization activities

it started for it to be known and to mobilize more ratifications and/or declarations by Member

States of the African Union in order to make the Protocol an effective and efficient instrument to

complement the African Charter.

References

I. Published and Unpublished works

1. Bösl A. & DieschoJ.(eds.), (2009),Human Rights in Africa .Legal

Perspectives on their Protection and Promotion ,Konrad Adenauer

Stiftung, 408p

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II. Legal instruments

a. International Instruments

1. The International Covenant on Civil and Political Rights (ICCPR), 1966

2. The International Covenant on Economic, Social and Cultural Rights

(ICESCR), 1966

3. The Universal Declaration on Human Rights (UDHR), 1948

4. The United Nations Charter, 1946

b. Regional Instruments

1. The African Union Constitutive Act, 2001

2. The American Convention on Human Rights, 1969

3. The American Declaration on the Rights and Duties of Man.

4. The European Convention on Human Rights, 1950

5. The Organization of the African Unity Charter, 1963

c. National Instruments

5. The Constitution of the Republic of Burundi, 2005

6. The Constitution of the United Republic of Tanzania, 1977

III. Applications and Communications

1. Application No. 001/2011 Femi Falana v. the African Union, 2011

(African Court)

2. Application No. 001/2008 Michelot Yogogombaye v. the Republic of

Senegal, 2008 (African Court)

3. Communication No. 155/2001 SERAC & Another v Nigeria,

2001(African Commission)

4. Communication No.101/93 Civil Liberties Organization v Nigeria,1993

(African Commission)

IV. Websites

1. African Union website: http://www.au.int/en/

2. African Commission website: http://www.chr.up.ac.za/index.php/browse-

by-institution/achpr-commission.html

3. African Court website: http://www.african-court.org/en/