African Charter on Human and Peoples' Rights
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The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that purports to promote and protect human rights and basic freedoms in the African continent. However, the preamble's commitment to the elimination of Zionism, which it compares with "colonialism" and "apartheid"[1], caused South Africa to qualify its 1996 accession with the reservation that the Charter fall in line with the UN's resolutions "regarding the characterisation of Zionism."[2]
It emerged under the aegis of the Organisation of African Unity (since replaced by the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution calling for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to those that already existed in Europe (European Convention on Human Rights) and the Americas (American Convention on Human Rights). This committee was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981 Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986– in honour of which 21 October was declared "African Human Rights Day".
Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples' Rights was to be created. The protocol came into effect on 25 January 2005.
In July 2004, the AU Assembly decided that the ACHP would be incorporated into the African Court of Justice. In July 2005, the AU Assembly then decided that the ACHP should be operationalised despite the fact that the protocol establishing the African Court of Justice had not yet come into effect. Accordingly, the Eighth Ordinary Sessionof the Executive Council of the African Union meeting in Khartoum, Sudan, on 22 January 2006, elected the first judges of the African Court on Human and Peoples' Rights. The relationship between the newly created Court and the Commission is yet to be determined.
Content
The African Charter on Human and People's Rights followed the footsteps of the European and Inter-American systems by creating a regional human rights system for Africa. The Charter shares many features with other regional instruments, but also has notable unique characteristics concerning the norms it recognises and also its supervisory mechanism.[1]
Norms contained in the Charter
Civil and Political Rights
The Charter recognises most of what are regarded universally accepted civil and political rights. The civil and political rights recognises in the Charter include the right to freedom from discrimination (Article 2 and 18(3)), equality (Article 3), life and personal integrity (Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel, inhuman or degrading treatment or punishment (Article 5), rights to due process concerning arrest and detention (Article 6), the right to a fair trial (Article 7 and 25), freedom of religion (Article 8), freedom of information and expression (Article 9), freedom of association (Article 10), freedom to assembly (Article 11), freedom of movement (Article 12), freedom to political participation (Article 13), and the right to property (Article 14).
Some human rights scholars however consider the Charter's coverage of other civil and political rights to be inadequate. For example, the right to privacy or a right against forced or compulsory labour are not explicitly recognised. The provisions concerning fair trial and political participation are considered incomplete by international standards.[2] However, this is subject to argument as for example Article 5 of the Charter states "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of this legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited" also, Article 15 states "Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work" - which may be understood to prohibit forced or compulsory labour, although this is not explicitly mentioned. Similarly, the Charter does not explicitly recognise the right to vote as a means of political participation, but Article 13 states "(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. (2) Every citizen shall have the right to equal access to the public service of his country. (3) Every individual shall have the right of access to public property and services in strict equality of al persons before the law."
Economic, Social and Cultural Rights
The Charter also recognises certain economic, social and cultural rights, and overall the Charter is considered to place considerable emphasis on these rights. The Charter recognises right to work (Article 15), the right to health (Article 16), and the right to education (Article 17). Through a decision by the African Commission on Human and Peoples' Rights, SERAC v Nigeria (2001), the Charter is also understood to include a right to housing and a right to food.
Peoples' Rights and Group Rights
In addition to recognising the individual rights mentioned above the Charter also recognises collective or group rights, or peoples' rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the state (Article 18), while "peoples" have the right to equality (Article 19), the right to self-determination (Article 20), to freely dispose of their wealth and national resources (Article 21), the right to development (Article 22), the right to peace and security (Article 32) and "a generally satisfactory environment" (Article 24).
Duties
The Charter is also unique as a regional human rights instrument in that it not only awards rights to individuals and peoples, but it also includes duties. The duties recognise include those towards the family and state security, the duties to pay taxes, and to promote the achievement of African unity (Article 29). Article 27(2), which is included under the heading "duties", provides "The rights and freedoms of each individual shall be exercised with due regards to the rights of others, collective security, morality and common interest".[3]
See also
- African Commission on Human and Peoples' Rights
- African Court on Human and Peoples' Rights
- African Union
- Human rights