HUMAN RIGHTS

LAWS 2219(3)

III. THE AFRICAN HUMAN RIGHTS SYSTEM

2023
III. A REGIONAL HUMAN RIGHTS SYSTEM FOR
AFRICAN COUNTRIES?
A. African Human Rights Instruments

B. African Human Rights Institutions

1. African Commission on Human and Peoples’ Rights
2. African Court on Human and Peoples’ Rights

C. Obligations of States under the African System

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A. AFRICAN HUMAN RIGHTS INSTRUMENTS
African Charter on Human and Peoples’ Rights, adopted 27 June 1981,
entered into force 21 October 1986;

African Charter on the Rights and Welfare of the Child, adopted 11 June
1990, entered into force 29 November 1999;

Protocol to the African Charter on the Rights of Women in Africa, adopted

11 July 2003, entered into force 25 November 2005;

Protocol to the African Charter on Human and Peoples’ Rights on the

Establishment of an African Court on Human and Peoples’ Rights, adopted
10 June 1998, entered into force 25 January 2004.

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AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
Also called the ‘Banjul Charter’;
Adopted in Kenya in 1981 and came into force on 21 October 1986;
Recognises individual rights and peoples’ rights;
Creates a supervisory mechanism: the African Commission.

Main features of the Charter:

o All ‘generations’ are recognised
o Recognises indivisibility of all rights
o SERAC v Nigeria Ref. ACHPR/COMM/A044/1 (27 May 2002):
“Clearly, collective rights, environmental rights and economic and social rights are essential
elements of human rights in Africa. The African Commission will apply any of the diverse
rights contained in the African Charter. It welcomes this opportunity to make clear that there is
no right in the African Charter that cannot be made effective.” @ para. 68
o No derogations are allowed; therefore limitations are not justified by emergencies and
special circumstances. Only reason for limitation possible - Article 27(2) under duties: “due
regard to the rights of others, collective security, morality and common interest”.
o Imposition of duties on both states and individuals
o Individuals’ duties: Articles 27 - 29
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AFRICAN CHARTER ON HUMAN AND PEOPLES’
RIGHTS (ACHPR)
Peoples’ Rights
Gunme and Others v Cameroon (2009) AHRLR 9 (ACHPR 2009)
No definition of “people” in the ACHPR
The Commission, having mandate to interpret the ACHPR, is
expected to provide clarifications
Perceived controversial nature of the term because of its political
connotation. (Gunme v Cameroon, para 169)
“where a group of people manifest some of the following
characteristics: a common historical tradition, a racial or ethnic
identity, cultural homogeneity, linguistic unity, religious and
ideological affinities, territorial connection, and a common
economic life, it may be considered to be a ‘people’. Such a group
may also identify itself as a people, by virtue of their consciousness
that they are a people”. (Gunme v Cameroon, para 170 citing
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UNESCO)
B. AFRICAN HUMAN RIGHTS INSTITUTIONS –
THE COMMISSION
1. African Commission on Human and Peoples’ Rights
3 main functions:
i. the protection of human and peoples' rights
ii. the promotion of human and peoples' rights
iii. the interpretation of the African Charter on Human and Peoples' Rights
o Mandates of the Commission:
i. Article 45 of the Charter: to promote and ensure protection of rights
under the Charter; to formulate principles to solve legal problems;
interpretation of Charter.
ii. To collaborate with civil society (through NGOs) and other
organisations
iii. State reporting obligations under Section 62 of the Charter
iv. Communications from States (Sections 47-54) and Other
Communications (Sections 55-59)

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AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COMMISSION
Admissibility of cases:
Article 56
Communications relating to human and peoples' rights referred to in article 55, received by the Commission,
shall be considered if they:
1. Indicate their authors even if the latter request anonymity;
2. Are compatible with the Charter of the Organization of African Unity or with the present Charter;
3. Are not written in disparaging or insulting language directed against the state concerned and its
institutions or to the Organization of African Unity;
4. Are not based exclusively on news disseminated through the mass media;
5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged;
6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the
Commission is seized of the matter; and
7. Do not deal with cases which have been settled by the states involved in accordance with the principles of
the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of
the present Charter.
Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000)
Socio-Economic Rights and Accountability Project v Nigeria (2008) AHRLR 108 (ACHPR 2008) 7
AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COMMISSION
Applicable principles by the Commission as per the Charter:
Article 60
“The Commission shall draw inspiration from international law on human and peoples' rights,
particularly from the provision of various African instruments on human and peoples' rights,
the Charter of the United Nations, the Charter of the Organization of African Unity, the
Universal Declaration of Human Rights, other instruments adopted by the United Nations and
by African countries in the field of human and peoples’ rights, as well as from the provisions of
various instruments adopted within the specialised agencies of the United Nations of which the
parties to the present Charter are members.”

Article 61
“The Commission shall also take into consideration, as subsidiary measures to determine the
principles of law, other general or specialised international conventions laying down rules
expressly recognised by member states of the Organization of African Unity, African practices
consistent with international norms on human and peoples' rights, customs generally accepted
as law, general principles of law recognised by African states, as well as legal precedents and
doctrine.”

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THE COMMISSION – LANDMARK CASES
SERAC v Nigeria Ref. ACHPR/COMM/A044/1 (27 May 2002):
Facts:
It was alleged that State-owned oil company with Shell Corp. Caused degradation to the
environment which affected the Ogoni people. Farming and fishing, two main means of
livelihood of the Ogoni people were affected through poisoning of water sources. The
complainant (Social and Economic Rights Action Center) alleged that the Govt. failed to
protect the people by controlling the effects of the activities of the companies. Also,
protestations by the people were met with the burning of their houses and destruction of
villages and farmlands. Hence, it was alleged that “the rights of the Ogoni people to enjoy
the best attainable state of physical and mental health, clean environment, property,
natural resources and adequate housing” were violated.
@ para. 57:
“Governments have a duty to respect their citizens, not only through appropriate
legislation and enforcement, but also by protecting them from damaging acts that may be
perpetrated by private parties.”
@ para. 65:
“The right to food is inseparably linked to the dignity of human beings and is therefore
essential for the enjoyment and fulfilment of such other rights as health, education, work
and political participation…The minimum core of the right to food requires
that…government should not destroy or contaminate food sources.”
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THE COMMISSION – LANDMARK CASES
Outcome:

“The Commission ruled that the Ogoni had suffered violations of their right to health
(Article 16) and right to a right to a general satisfactory environment favourable to
development (Article 24) due to the government's failure to prevent pollution and
ecological degradation. It held further that the State's failure to monitor oil activities and
involve local communities in decisions violated the right of the Ogoni people to freely
dispose of their wealth and natural resources (Article 21), although it did not provide a
definition of a ‘people'. The Commission suggested that a failure to provide material
benefits for the Ogoni people was also a violation.
The Commission also held that the implied right to housing (including protection from
forced eviction), which is derived from the express rights to property, health and family,
was violated by the destruction of housing and harassment of residents who returned to
rebuild their homes. Finally, destruction and contamination of crops by government and
non-state actors violated the duty to respect and protect the implied right to food.
The Commission issued orders to cease attacks on the Ogoni people, to investigate and
prosecute those responsible for attacks, to provide compensation to victims, to prepare
environmental and social impact assessments in the future and to provide information on
health and environmental risks.”
http://www.escr-net.org/docs/i/404115
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THE COMMISSION – LANDMARK CASES
Innovations:
Positive actions were called for by the government which also
has a duty to protect violations of human rights from being
perpetrated by private parties.

“… Although the right to housing or shelter is not explicitly

provided for under the African Charter, the corollary of the
combination of the provisions protecting the right to ...
health, the right to property, and the protection accorded to
the family forbids wanton destruction of shelter because when
housing is destroyed, property, health and family life are
adversely affected ... [T]he combine effect of articles 14, 16
and 18 reads into the Charter a right to shelter or housing
...”. @ para. 60 11
AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COURT
2. African Court on Human and Peoples’ Rights
•Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on
Human and Peoples’ Rights: came into force in 2004 (33 out of 55 States have ratified the Protocol);

•Court complements and reinforces functions of Commission

Article 2 of the Protocol: RELATIONSHIP BETWEEN THE COURT AND THE COMMISSION
“The Court shall, bearing in mind the provisions of this Protocol, complement the protective mandate of
the African Commission on Human and Peoples' Rights (hereinafter referred to as "the Commission")
conferred upon it by the African Charter on Human and Peoples' Rights (hereinafter referred to as "the
Charter").”

•“The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and
application of the African Charter on Human and Peoples' Rights, the (the Charter), the Protocol and any
other relevant human rights instrument ratified by the States concerned.”
•“According to the Protocol (Article 5) and the Rules [of Court] (Rule 33), the Court may receive
complaints and/or applications submitted to it either by the African Commission of Human and Peoples’
Rights or State parties to the Protocol or African Intergovernmental Organizations.”

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•“Non-Governmental Organizations with observer status before the
African Commission on Human and Peoples’ Rights and individuals
from States which have made a Declaration accepting the jurisdiction
of the Court can also institute cases directly before the Court.”
•As of 29 March 2022, only 8 of the 33 State Parties to the Protocol
have made such the declaration recognizing the competence of the
Court to receive cases from NGOs and individuals. Those countries
are Burkina Faso, The Gambia, Guinea Bissau, Ghana, Mali, Malawi,
Niger and Rep. of Tunisia.
•Rwanda withdrew its declaration in 2017; Tanzania in
2019; Côte d’Ivoire and Benin in 2020
•http://www.african-court.org/en/

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AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COURT…
Article 3 JURISDICTION
1. The jurisdiction of the Court shall extend to all cases and disputes
submitted to it concerning the interpretation and application of the
Charter, this Protocol and any other relevant Human Rights instrument
ratified by the States concerned.
2. In the event of a dispute as to whether the Court has jurisdiction, the Court
shall decide.
Article 4 ADVISORY OPINIONS
1. At the request of a Member State of the OAU, the OAU, any of its organs,
or any African organization recognized by the OAU, the Court may
provide an opinion on any legal matter relating to the Charter or any other
relevant human rights instruments, provided that the subject matter of the
opinion is not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every
judge shall be entitled to deliver a separate or dissenting decision.

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AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COURT…
Article 5 ACCESS TO THE COURT
1. The following are entitled to submit cases to the Court
a. The Commission;
b. The State Party which has lodged a complaint to the Commission;
c. The State Party against which the complaint has been lodged at the
Commission;
d. The State Party whose citizen is a victim of human rights violation;
e. African Intergovernmental Organizations.
2. When a State Party has an interest in a case, it may submit a
request to the Court to be permitted to join.
3. The Court may entitle relevant Non Governmental Organizations
(NGOs) with observer status before the Commission, and
individuals to institute cases directly before it, in accordance with
article 34 (6) of this Protocol.
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AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COURT…
Article 6 ADMISSIBILITY OF CASES
1. The Court, when deciding on the admissibility of a case
instituted under article 5 (3) of this Protocol, may request the
opinion of the Commission which shall give it as soon as
possible.
2. The Court shall rule on the admissibility of cases taking into
account the provisions of article 56 of the Charter.
3. The Court may consider cases or transfer them to the
Commission.
Article 7 SOURCES OF LAW
The Court shall apply the provisions of the Charter and any
other relevant human rights instruments ratified by the States
concerned.
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AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COURT…
In respect of cases brought by NGOs and individuals,
articles 6 and 34(6) of the Protocol establishing the Court
provides for the following admissibility requirements: In
addition to the seven admissibility requirements under
article 56 of the African Charter, cases brought directly
before the Court by individuals and NGOs are admissible
only when the state against which the complaint is brought
has made a declaration under article 5(3) of the Court’s
Protocol accepting the competence of the court to receive
such complaints.

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AFRICAN HUMAN RIGHTS INSTITUTIONS – THE
COURT…
Article 9 AMICABLE SETTLEMENT
The Court may try to reach an amicable settlement in a case
pending before it in accordance with the provisions of the
Charter.
Article 27 FINDINGS
1. If the Court finds that there has been violation of a human or
peoples' right, it shall make appropriate orders to remedy the
violation, including the payment of fair compensation or
reparation.
2. In cases of extreme gravity and urgency, and when necessary
to avoid irreparable harm to persons, the Court shall adopt
such provisional measures as it deems necessary. 18
C. OBLIGATIONS OF STATES IN RESPECT TO
ESCR: EXAMPLES FROM STATES
South Africa: Government of the Republic of South Africa. & Ors
v Grootboom & Ors 2000 (11) BCLR 1169. (CC):
o Minimum core obligation v. reasonable measures towards
progressive realisation
Nature of the Case:
Challenge regarding failure of governments to provide adequate
housing under s.26 (right to adequate housing) and s.28 (Children's
right to shelter) of the South African Constitution; Failure of housing
programme to address needs of those in desperate situations;
Reasonable measures and allocation of resources; Whether there is a
right to minimum shelter; Minimum core content of right to housing;
Extent of judicial deference to government policy choice; Appropriate
remedy.
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OBLIGATIONS OF STATES IN RESPECT TO ESCR:
EXAMPLES FROM STATES…
Significance of the Case:
“This is probably the most cited ESC rights case, laying the
foundation for subsequent successful ESC rights claims in South
Africa and elsewhere. The Court lays the foundation for the
justiciability of the obligation to progressively realize ESC
rights, which the Court will review on the basis of the
“reasonableness” test, and exercise deference, where
appropriate, at the stage of remedy. The ruling places the
adjudication of ESC rights within a familiar framework to
courts in all jurisdictions.”
http://www.escr-net.org/docs/i/401409
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OBLIGATIONS OF STATES IN RESPECT TO ESCR:
EXAMPLES FROM STATES…
South Africa: Minister of Health v Treatment Action Campaign (TAC) (2002) 5
SA 721 (CC):
Nature of the Case:
“Constitutional Challenge to restrictions on the provision of anti-retroviral drugs to
HIV positive pregnant women, resulting in tens of thousands of unnecessary
infections and deaths; Alleged violation of the right to health care services in
s.27(1) and s. 28(1)(c) of the South African Constitution. Progressive realization.
Whether there is an unrestricted right to minimum core medical services; Whether
granting injunctive relief and supervisory jurisdiction breaches the separation of
powers.”
It was argued by the State that the question whether the State could have provided
the drug across the country belonged to govt. policy and judges could not intervene.
It was held by the High Court that the limitations of supply by State was
unreasonable; the drugs were available free of cost and were deemed to be safe to be
used in private sector and on test sites. Appeal made to Constitutional Court
rejected.
Pending the appeal, Judge of High Court granted interim relief
Follow-up action made and where non-compliance, contempt of court filed.
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QUESTIONS
How does the case SERAC v Nigeria Ref. ACHPR/COMM/A044/1 contribute to our
understanding of obligations of States?
What clarifications does the case Gunme and Others v Cameroon (2009) AHRLR 9
(ACHPR 2009) bring to our understanding of “people” in the African Charter on Human
and Peoples’ Rights?
Explain what is meant by ‘indivisibility’ of rights.
What is the rational of the admissibility criteria as set out in the African Charter on Human
and Peoples’ Rights?
Comment on the following:
Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000)
Purohit and Another v the Gambia
Zimbabwe Human Rights NGO Forum v Zimbabwe (2005) [Admissibility and
responsibility for activities of non-state actors]

On limitation of rights: Media Rights Agenda and Others v Nigeria

Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) [The first
inter-state communication of the Commission]
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