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OXFORD COMMENTARIES ON
INTERNATIONAL L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Laurence Boisson de Chazournes,
Professor of Law at the University of Geneva
The African Charter on Human

and Peoples’ Rights
The African Charter
on Human and
Peoples’ Rights
A Commentary
RACHEL MURRAY
3
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Rachel Murray 2019
The moral rights of the author have been asserted
First Edition published in 2019
Impression: 1
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a retrieval system, or transmitted, in any form or by any means, without the
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and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Table of Contents
Table of Cases vii

Table of Legislation xv
List of Abbreviations xix
1. Introduction 1
2. Article 1: Obligations of Member States 16
3. Article 2: Non-Discrimination 44
4. Article 3: Equality Before the Law and Equal Protection of the Law 90
5. Article 4: The Right to Life and Integrity of the Person 101
6. Article 5: Respect of Dignity; Prohibition of Slavery and Torture
and Other Forms of Ill-Treatment 132
7. Article 6: Right to Liberty and Security of the Person 184
8. Article 7: Right to a Fair Trial 205
9. Article 8: Freedom of Conscience and Religion 253
10. Article 9: Right to Receive Information and Freedom of Expression 266
11. Article 10: Freedom of Association 294
12. Article 11: Right to Assemble 307
13. Article 12: Freedom of Movement 318
14. Article 13: Participation in the Government, Access to the Public
Service and to Public Property 344
15. Article 14: Right to Property 364
16. Article 15: Right to Work 386
17. Article 16: Right to Health 400
18. Article 17: Right to Education, Cultural Life and the Promotion
of Morals and Traditional Values 437
19. Article 18: Protection of the Family, Rights of Women, Older
Persons and Persons with Disabilities 458
20. Article 19: Equality of Peoples 484
21. Article 20: Peoples’ Right to Existence, Self-Determination and
Freedom from Foreign Domination 497
22. Article 21: Disposal of Wealth and Natural Resources 508
23. Article 22: Right to Development 521
24. Article 23: Right to Peace and Security 538
25. Article 24: Right to General Satisfactory Environment 547
26. Article 25: Human Rights Teaching, Education and Publication 558
vi Table of Contents
27. Article 26: Independence of the Courts and Establishment of

National Institutions 565
28. Articles 27–29: Individual Duties 576
29. Articles 30–40: The African Commission on Human
and Peoples’ Rights 597
30. Articles 41–44: Appointment of Secretary, Election of Chair
and Vice Chair, Voting, Privileges and Immunities 610
31. Articles 45 and 46: Mandate and Procedure of the
African Commission 629
32. Articles 47–54: Inter-State Communications and Activity Reports 655
33. Articles 55 and 57: Individual Communication Procedure 664
34. Article 56: Admissibility of Individual Communications 684
35. Article 58: Serious or Massive Violations and Emergencies 753
36. Article 59: Confidentiality and Publication 767
37. Articles 60 and 61: Applicable Principles 782
38. Article 62: State Reporting 794
39. Articles 63–68: Signature, Ratification and Adherence,
Reservations and Protocols 807
Index 847

Table of Cases
AFRICAN COMMISSION ON HUMAN RIGHTS
Communication 2/88, Iheanyichukwu A. Ihebereme v USA, 13 July 1987�� 665–66
Communication 7/88, Committee for the Defence of Political Prisoners v Bahrain,
26 February 1988�� 665–66
Communication 8/88, Nziwa Buyingo v Uganda, 22 March 1995 �� 184
Communication 11/88, Henry Kalenga v Zambia�� 663
Communication 25/89-47/90-56/91-100/93, Free Legal Assistance Group, Lawyers’ Committee
for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v DRC,
4 April 1996 �� 103–4, 141, 188, 213, 256–57, 260–61, 401
Communication 27/89-46/91-49/91-99/93, Organisation mondiale contre la torture, Association
Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine
des droits de l’Homme v Rwanda, 31 October 1996��52, 62, 83–84, 103–4,
148, 188, 332, 334, 335, 338, 754, 755
Communication 35/89, Seyoum Ayele v Togo, 27 April 1994�� 684
Communication 39/90_10AR, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v
Cameroon, 24 April 1997��197–98, 234, 248, 387
Communication 43/90, Union des scolaires nigériens, Union générale des étudiants nigériens au
Bénin v Niger, 27 April 1994�� 684
Communication 45/90, Civil Liberties Organisation v Nigeria, 27 April 1994�� 684
Communication 48/90-50/91-52/91-89/93, Amnesty International, Comité Loosli Bachelard,
Lawyers’ Committee for Human Rights, Association of Members of the Episcopal Conference
of East Africa v Sudan, 15 November 1999�� 40–41, 51, 83–84, 105–6, 108–9,
110–11, 118–19, 128, 149–50, 159, 172, 190, 197, 236–37, 257, 261, 263, 285–86, 755
Communication 53/90_7AR, Albert T. Capitao v Tanzania, 27 April 1994 �� 684
Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association,
Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l'Homme and RADDHO,
Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l'Homme v
Mauritania, 11 May 2000�� 17, 36, 38–39, 47, 62, 103–5, 112, 118–19, 143, 147,
158–59, 186, 202, 203, 220, 241, 280–81, 304, 315, 325, 339–40, 364, 541, 667
Communication 57/91, Tanko Bariga v Nigeria, 27 April 1994�� 684
Communication 59/91, Embga Mekongo Louis v Cameroon, 22 March 1995 �� 249
Communications 64/92-68/92-78/92_8AR Krishna Achuthan (on behalf of Aleke Banda),
Amnesty International (on behalf of Orton and Vera Chirwa), Amnesty International (on behalf
of Orton and Vera Chirwa v Malawi, 22 March 1995��103–4, 147, 158–59, 186, 190–91, 234
Communication 65/92, Ligue Camerounaise des Droit de l’Homme v Cameroon, 24 April 1997�� 666
Communication 71/92, Rencontre Africaine pour la Défense des Droits de l'Homme
(RADDHO) v Zambia, 31 October 1997�� 50, 75, 89, 335, 341
Communication 72/92, Bamidele Aturu v Nigeria, 27 April 1994�� 684
Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad,
11 October 1995 �� 38–39, 105, 110–11, 172, 190, 201, 249, 296, 304–5, 563, 754–55
Communication 75/92, Congrès du peuple katangais v Democratic Republic of the Congo,
22 March 1995�� 501
Communication 87/93, Constitutional Rights Project (in respect of Zamani Lakwot and six others)
v Nigeria, 22 March 1995�� 34
Communication 97/93_14AR, John K. Modise v Botswana,
6 November 2000��136–37, 138–39, 167, 329, 340, 351, 363, 364
Communication 101/93, Civil Liberties Organisation (in respect of the Nigerian Bar
Association) v Nigeria, 22 March 1995 �� 189–90, 202, 221–22, 242–43, 251, 299–300, 305
viii Table of Cases
Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998 ��22, 27,
48, 280–81, 290, 353–54, 362, 363
Communication 103/93, Alhassan Abubakar v Ghana, 31 October 1996��189, 234, 280–81, 684
Communication 105/93-128/94-130/94-152/96, Media Rights Agenda, Constitutional
Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria,
31 October 1998 �� 193, 242, 364–65, 582–83
Communication 107/93, Academic Staff of Nigerian Universities v Nigeria, 27 April 1994�� 684
Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995��18, 209
Communication 131/94, Ousman Manjang v Gambia (The), 27 April 1994�� 684
Communication 135/94, Kenya Human Rights Commission v Kenya, 11 October 1995 �� 684
Communication 136/94, William Courson v Zimbabwe, 22 March 1995�� 65
Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional
Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.)
v Nigeria, 31 October 1998��23, 34, 111–12, 115–16, 118–19, 132–33, 136,
144, 163, 172, 189–90, 201, 224, 248, 296, 300, 307, 315
Communication 140/94-141/94-145/95, Constitutional Rights Project, Civil Liberties
Organisation and Media Rights Agenda v Nigeria, 5 November 1999 ��33–34, 172, 188, 582
Communication 143/95-150/96, Constitutional Rights Project and Civil Liberties
Organisation v Nigeria, 5 November 1999 �� 33–34, 190
Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000��19, 23, 38–39,
73, 83–84, 189–90, 198–99, 242, 270–71, 280–81, 312, 325, 358, 664, 753
Communication 148/96 Constitutional Rights Project v Nigeria, 15 November 1999�� 197–98, 201, 202
Communication 151/96, Civil Liberties Organisation v Nigeria,
15 November 1999�� 142, 147, 158–59, 172, 180
Communication 153/96, Constitutional Rights Project v Nigeria, 15 November 1999��191, 197, 202, 234
Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center
for Economic and Social Rights (CESR) v Nigeria, 27 October 2001�� 33, 44–45,
49, 121, 151–52, 509, 548
Communication 157/96, Association pour la sauvegarde de la paix au Burundi v Kenya,
Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia, 29 May 2003 ��103–4, 337, 657
Communication 159/96, Union interafricaine des droits de l’Homme, Fédération internationale
des ligues des droits de l’Homme, RADDHO, Organisation nationale des droits de l’Homme
au Sénégal and Association malienne des droits de l’Homme v Angola,
11 November 1997�� 74, 83–84, 334, 338
Communication 197/97, Bah Ould Rabah v Mauritania, 4 June 2004�� 132–33, 169–70
Communication 198/97, SOS Esclaves v Mauritania, 5 May 1999�� 169
Communication 199/97, Odjouoriby Cossi Paul v Benin, 4 June 2004�� 233–34
Communication 204/97, Movement burkinabé des droits de l’Homme et des peuples v
Burkina Faso, 7 May 2001��93, 97, 98, 99–100, 105–6, 123, 134–35, 161, 198, 234, 330, 360
Communication 205/97, Kazeem Aminu v Nigeria, 11 May 2000 ��105, 172, 194, 201, 299
Communication 206/97, Centre for Free Speech v Nigeria, 15 November 1999 �� 201, 202
Communication 209/97, Africa Legal Aid v Gambia (The), 11 May 2000 �� 684
Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001�� 19, 47, 51, 55,
56, 57, 76–77, 83–84, 88, 361–62, 684, 775
Communication 212/98, Amnesty International v Zambia, 5 May 1999�� 73, 83–84,
254–55, 257, 278, 295, 330, 346
Communication 215/98, Rights International v Nigeria, 15 November 1999 �� 329, 338
Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence
and Assistance Project v Nigeria, 7 May 2001��40–41, 207, 224, 239, 684–85
Communication 222/98-229/99, Law Office of Ghazi Suleiman v Sudan, 3 May 2003 �� 148–50,
159, 193, 224, 225, 684–85
Communication 223/98, Forum of Conscience v Sierra Leone, 6 November 2000��102, 118–19
Communication 224/98, Media Rights Agenda v Nigeria, 6 November 2000��134–35, 139,
148, 158–59, 172, 214, 224, 280
Communication 225/98, Huri-Laws v Nigeria, 6 November 2000 �� 132–33, 134–35, 136–37,
141, 158–59, 162, 194, 267–68, 329

Table of Cases ix
Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda,
29 May 2003��75, 84, 85, 105, 107–8, 329, 457, 498, 527, 539–40, 656
Communication 228/99, Law Offices of Ghazi Suleiman v Sudan, 29 May 2003 �� 186, 266,
279, 290, 295–96, 304–5, 308–9, 316, 325–26, 328–29, 340
Communication 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v
Burundi, 6 November 2000�� 93, 217–18
Communication 232/99, John D. Ouko v Kenya, 6 November 2000�� 148, 172,
201, 281–82, 300, 305, 326–27, 329, 339–40
Communication 233/99-234/99, Interights (on behalf of Pan African Movement and Citizens for
Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African
Group) v Eritrea, 29 May 2003�� 656–57
Communication 236/00, Curtis Francis Doebbler v Sudan, 4 May 2003�� 73,
132–33, 139, 142–43, 144–45, 172, 179–80, 182, 262, 264, 333
Communication 240/01, Interights et al (on behalf of Mariette Sonjaleen Bosch) v Botswana,
20 November 2003��36, 115–16, 119
Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003��17, 32, 33, 40–41, 46, 79,
85, 86, 88, 90–91, 96, 98, 99, 100, 136–37, 166–67,
179–81, 187–88, 223, 237, 354, 362, 400
Communication 242/01, Interights, Institute for Human Rights and Development in Africa,
and Association mauritanienne des droits de l’Homme v Mauritania, 4 June 2004�� 296, 301
Communication 243/01, Women’s Legal Aid Center (on behalf of Sophia Moto) v Tanzania,
7 December 2004�� 209, 251
Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe,
15 May 2006�� 23–24, 25,151–52, 153, 208, 772, 27–28, 29, 36, 40–41,
66–67, 150, 151–52, 153, 208, 772
Communication 246/02, Mouvement ivoirien des droits humains (MIDH) v Cote d’Ivoire,
29 July 2008��36, 48, 49, 76–77, 82–83, 86, 88, 89, 241, 345, 359, 360, 361–62
Communication 249/02, Institute for Human Rights and Development in Africa (on behalf
of Sierra Leonean refugees in Guinea) v Guinea, 7 December 2004 ��53, 82, 84, 85, 118, 180, 332, 338
Communication 250/02, Liesbeth Zegveld and Mussie Ephrem v Eritrea,
20 November 2003��38–39, 74, 84, 85, 158, 185, 188, 189, 190, 191, 193, 198–99, 202
Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005��17, 20,
33–34, 41–43, 209, 251, 252, 295–96, 305, 308–9, 316, 317, 352, 362
Communication 253/02, Antonie Bissangou v Congo, 29 November 2006�� 45–46, 48,
90, 91, 93, 95, 96, 97–98, 99, 222–23, 248, 509, 630
Communication 255/02, Garreth Anver Prince v South Africa, 7 December 2004 �� 259, 260, 261, 665
Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic
of Congo, 24 July 2011�� 22–23, 41–43, 114, 117–18, 130, 206, 215, 217–18, 221, 222, 249
Communication 260/02, Bakweri Land Claims Committee v Cameroon, 4 December 2004�� 685
Communication 262/02, Mouvement Ivoirien de droits de l’Homme (MIDH) v Côte d’Ivoire,
22 May 2008��52, 84, 85, 86–88
Communication 266/03, Kevin Mgwanga Gunme et al v Cameroon, 27 May 2009��37–38, 54–55,
70–71, 84–85, 86–89, 128, 134–35, 189, 203, 304, 316, 317, 484–85, 506–7
Communication 269/03, Interights (on behalf of Safia Yakubu Husaini et al.) v Nigeria,
11 May 2005�� 115–16
Communication 272/03, Association of Victims of Post Electoral Violence & Interights v
Cameroon, 25 November 2009�� 17, 21, 23–24, 25–26, 27, 28, 30, 31, 33–34,
37–38, 52–53, 59, 84–85, 86–87, 111, 129, 130, 215–16, 249–50
Communication 273/03, Centre for Advancement of Democracy, Social Justice, Conflict
Resolution and Human Welfare v Nigeria, 11 May 2005�� 498
Communication 274/03 and 282/03, Interights, ASADHO and Madam O. Disu v Democratic
Republic of Congo, 28 May 2014�� 164, 193, 207–8, 222, 223, 226, 228–29, 238, 243
Communication 275/03, Article 19 v Eritrea, 30 May 2007�� 39, 40–41
Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights
Group (on behalf of Endorois Welfare Council) v Kenya, 25 November 2009�� 253, 256,
257, 259, 260, 261, 264, 457, 512–13

x Table of Cases
Communication 277/03, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard
Kobedi) v Botswana, 12 October 2013�� 46–47, 48, 117, 139–40, 163–64, 211–12, 230, 234–35
Communication 278/03, Promoting Justice for Women and Children (PROJUST NGO) v
Democratic Republic of Congo, 12 October 2013�� 566
Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) v Sudan, 27 May 2009�� 21–22, 30, 38–39, 41–43, 102, 103,
106, 108–9, 110–11, 128, 129, 130, 134–35, 136–37, 139–41, 151–52, 180, 181, 183,
184, 185, 187, 199–200, 202, 203, 325, 326–27, 331, 337, 340, 341, 401, 461, 524
Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe v Zimbabwe, 3 April 2009 ��21–22, 209–10, 236–37, 282, 284, 387
Communication 286/04, Dino Noca v Democratic Republic of the Congo, 22 October 2012 ��21–22,
23–24, 30, 41, 50, 92–93, 98, 100, 207–8, 231, 364–65
Communication 288/04, Gabriel Shumba v Zimbabwe, 2 May 2012��134, 144, 172, 182, 183
Communication 288/04, Gabriel Shumba v Zimbabwe, 30 June 2017�� 102, 196
Communication 290/04, Open Society Justice Initiative (on behalf of Pius Njawè Noumeni) v
Cameroon, 25 May 2006�� 291
Communication 292/04, Institute for Human Rights and Development in Africa (on behalf
of Esmaila Connateh & 13 others) v Angola, 22 May 2008��20, 25, 27, 33–34, 41–43, 75, 85,
86–87, 88, 132–33, 139, 140, 147, 155–56, 162, 172, 180–81,
182, 183, 188, 193, 197–98, 203, 204, 334, 335–36, 339–40
Communication 294/04, Zimbabwe Lawyers for Human Rights and Institute for Human Rights and
Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3 April 2009��48, 53,
55, 57, 66, 75–76, 85, 88, 92, 94–95, 96, 97, 98, 99, 100, 207–8,
223–24, 236–37, 251–52, 270–71, 278, 290, 334, 339–40, 341, 565
Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai
Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe,
2 May 2012��20, 25, 30, 41–43, 102, 104, 105–6, 109–10, 123, 124, 129, 130
Communication 296/05, Centre on Housing Rights and Evictions v Sudan�� 180
Communication 297/05, Scanlen & Holderness v Zimbabwe, 3 April 2009 ��270, 280–81,
286, 288, 290, 291
Communication 301/05, Haregewoin Gebre-Sellaise & IHRDA (on behalf of former
Dergue officials) v Ethiopia, 7 November 2011�� 20, 25, 29, 40–43,
52, 58–59, 82–83, 207, 223–24, 225, 226, 233–34, 235, 249–50, 252, 566
Communication 302/05, Maître Mamboleo M. Itundamilamba v Democratic Republic of the
Congo, 23 April 2013��91, 92–93, 94, 95–96, 97–98, 100, 206, 207, 213,
231, 236–37, 248–49, 252
Communication 305/05, ARTICLE 19 and Others v Zimbabwe, 22 May 2012��62, 268–69, 275
Communication 313/05, Kenneth Good v Botswana, 26 May 2010�� 19, 23–24, 40–41, 56–57,
270, 278, 280, 282–83, 287, 289, 290, 291, 461, 582
Communication 317/06, the Nubian Community in Kenya v the Republic of Kenya,
28 February 2015��21–22, 23–24, 33–34, 137–39
Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire,
27 May 2016��21–22, 33–34, 41–43, 46, 50, 54, 56–57, 60, 72, 73, 83, 86, 87, 88,
132–33, 136, 138–39, 143, 253, 329–30, 338, 346, 353–54, 360, 523, 756
Communication 319/06, Interights & Ditshwanelo v the Republic of Botswana,
28 June 2016��19, 21–22, 33–34, 41–43, 114, 115–16, 120, 164, 182
Communication 321/06, Law Society of Zimbabwe et al v Zimbabwe, 18 October 2013�� 629–30
Communication 322/06, Tsatsu Tsikata v Ghana, 29 November 2008 and
14 October 2014 ��224, 225, 226, 227, 233, 243, 784
Communication 323/06, Egyptian Initiative for Personal Rights & Interights v Egypt,
16 December 2011��21–22, 23, 26, 29, 41–43, 57, 63–64, 83, 84–85, 86–87, 90–92, 94–96,
97–98, 99–100, 136–37, 139, 141, 142–43, 148, 151, 152–53, 181, 182, 400
Communication 323/06, Egyptian Initiative for Personal Rights and Interights v Egypt,
12 October 2013 ��53, 56–57, 73–74, 84, 86, 87, 88, 266, 269,
270–71, 272, 278, 280–81, 282, 287, 291, 582

Table of Cases xi
Communication 328/06, Frente para a Libertação do Estado de Cabinda v Angola,
5 November 2013��500–1, 509, 526
Communication 333/2006, Southern African Human Rights NGO Network v Tanzania, May 2010��784
Communication 334/06, Egyptian Initiative for Personal Rights and Interights v Arab
Republic of Egypt, 3 March 2011�� 104–5, 115, 120, 129, 130, 131, 135, 136, 144, 150, 159, 171,
172, 182, 183, 220, 222, 228–29, 237–38, 248, 250, 252, 566, 784–85
Communication 335/06, Dabalorivhuwa Patriotic Front v Republic of South Africa,
18 October 2013 ��55, 56, 57–58, 82, 83, 93, 348, 783, 808–9
Communication 339/07, Patrick Okiring and Agupio Samson (represented by Human Rights
Network and ISIS-WICCE) v Republic of Uganda, 28 April 2018�� 194–95, 230–31, 237, 249
Communication 351/07, Givemore Chari (represented by Gabriel Shumba) v Republic of
Zimbabwe, 1 March 2012�� 105
Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative
for Personal Rights and Interights) v the Arab Republic of Egypt, 28 April 2018��22, 257–58, 810–11
Communication 361/08, J.E. Zitha & P.J.L. Zitha (represented by Prof. Dr. Liesbeth Zegveld) v
Mozambique, 1 April 2011�� 161, 808–9
Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013�� 20,
21–22, 23–24, 26, 29, 40–43, 48–49, 134–35, 140–41, 142, 149–50, 152–53,
179–80, 181, 182, 185, 188–90, 197–98, 202, 203, 228–29, 234, 250
Communication 373/09, Interights, Institute for Human Rights and Development in Africa, and
Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010�� 22, 23–24, 43, 364
Communication 375/09, Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya
and International Center for the Protection of Human Rights) v Kenya, 7 November 2011�� 636–37
Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) v Sudan, 14 March 2014�� 20, 23–24, 33–34, 41–43,
185, 193, 299, 301, 326–27, 330–31, 340, 388–89
Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman
(represented by FIDH and OMCT) v Sudan, 10 March 2015��139, 148, 152–53, 171, 185, 248
Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti,
12 May 2014�� 162, 172
Communication 383/10, Mohammed Abdullah Saleh Al-Asad v the Republic of Djibouti,
4 October 2014��37–38
Communication 389/10, Mbiankeu v Cameroon, 1 August 2015��33–34
Communication 409/12, Luke Munyandu Tembani and Benjamin John Freeth (represented by
Norman Tjombe) v Angola and Thirteen Others, 30 April 2014�� 212, 284
Communication 416/12, Jean-Marie Atangana Mebara v Cameroon, 18 May 2016�� 225
Communication 445/13, Human Rights Council and Others v Egypt, 19 May 2016�� 206
Communication 464/14, Uhuru Kenyatta and William Ruto (represented by Innocence
Project Africa) v Republic of Kenya, 14 March 2014 �� 498
Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt,
8 August 2015�� 115–16
Communication 467/14, Ahmed Ismael and 528 Others v the Arab Republic of Egypt, 27 May 2016 �� 206
Communication 477/14, Crawford Lindsay von Abo v the Republic of Zimbabwe, 31 March 2016��684–85
AFRICAN COURT OF HUMAN RIGHTS
Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights
Movement v Burkina Faso, App. No. 013/2011, Ruling on Reparations, 5 June 2015��41–43
Actions Pour La Protection Des Droits De L’homme (APDH) v Republic of Cote d’Ivoire,
App. No. 001/2014, Judgment on the Merits, 18 November 2016��41–43
African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No. 006/2012,
Judgment of 26 May 2017�� 365, 509
Alex Thomas v United Republic of Tanzania, App. No. 005/2013, Judgment,
20 November 2015��22, 218, 252, 784
Amiri Ramadhani v United Republic of Tanzania, App. No. 010/2015, Judgment,
11 May 2018��22, 835

xii Table of Cases
Anaclet Paulo v United Republic of Tanzania, App. No. 020/2016, Judgment,
21 September 2018 ��95–96, 194–95, 219
Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo and Blaise
Ilboudo and the Burkinabé Human and Peoples’ rights Movement v Burkina Faso,
App. No. 013/2011, Judgment of 28 March 2014 �� 207–8, 213–14, 216, 233–34, 784
Judgment on Reparations, 15 June 2015�� 250–51
Delta International Investments SA, MR AGL de Lange and Mrs M De Lange v Republic
of South Africa, App. No. 002/2012, Decision of 30 March 2012 �� 822
Diocles William v United Republic of Tanzania, App. No. 016/2016, Judgment,
21 September 2018 �� 218, 223, 232, 252
Femi Falana v African Union, App. No. 001/2011�� 581–82
Ingabire Victoire Umuhoza v Republic of Rwanda, App. No. 003/2014, Ruling on Withdrawal
of Declaration, 3 June 2016; and subsequent judgment 24 November 2017�� 821–22
Kijiji Isiagi v United Republic of Tanzania, App.No.032/2015, Judgment, 31 March 2018 ��95–96
Lohé Issa Konaté v Burkina Faso, App. No. 004/2013
Judgment of 5 December 2014�� 269, 273–74, 281, 282, 283, 287, 289, 582, 784
Separate Opinion of Judges Sophia A. B. Akuffo, Bernard M. Ngoepe and Duncan
Tambala, 5 December 2014�� 279
Judgment on Reparations, 3 June 2016 �� 290–91
Michelot Yogogombaye v Republic of Senegal, App. No. 001/2008, Judgment,
15 December 2009�� 821–22
Minani Evarist v United Republic of Tanzania, App. No. 027/2015, Judgment, 21 September 2018�� 252
Mohamed Abubakari v United Republic of Tanzania, App. No. 007/2013, Judgment of
3 June 2016��223, 252, 784
Rutabingwa Chrysanthe v Republic of Rwanda, App. No. 022/2015, Order, 3 June 2016 �� 643–44
Tanganyika Law Society and the Legal and Human Rights Centre v United Republic of Tanzania,
and Reverend Christopher R Mtikila v United Republic of Tanzania, App. Nos. 009/2011,
and 011/2011��346, 348, 350–51, 359, 362, 783–84, 820–21
Thobias Mang’ara Mango and Shukurani Masegenya Mango v the United Republic of Tanzania,
App. No. 005/2015, Judgment of 11 May 2018�� 21–22, 224, 228–29, 232
Reverend Christopher R. Mtikila v the United Republic of Tanzania, App. No. 011/2011,
Ruling on Reparations, 13 June 2014��361–62, 363
Urban Mkandawire v Republic of Malawi, App. No. 003/2011, Judgment�� 820–21
EAST AFRICAN COURT OF JUSTICE
Burundian Journalists Union v Attorney General of the Republic of Burundi,
Reference No. 7 of 2013 �� 276
Uhai Eashri Health Development Initiative (Rwanda) v Human Rights Awareness & Promotion
Forum (HRAPF) & the Attorney General of the Republic of Uganda, 20/2014-21/2014�� 65
ECOWAS COMMUNITY COURT OF JUSTICE
Barthelemy Dias v Republic of Senegal, ECW/CCJ/JUG/05/12, 23 March 2012��188–89, 224
Djot Bayi & 14 Others v Nigeria & 4 Others, ECW/CCJ/APP/10/06, 28 January 2009��136–37, 197–98
Hadijatou Mani Koraou v Niger, ECW/CCJ/JUD/06/08, 27 October 2008��54, 170
Manneh v The Gambia, ECW/CCJ/JUD/03/08, 5 June 2008�� 654
Musa Saidykhan v the Gambia, ECW/CCJ/JUD/08/10 16 December 2010��136–37, 204
Registered Trustees of the Socio-economic and Accountability Project (SERAP) v
Nigeria & UBEC, ECW/CCJ/JUD/07/10, 30 November 2010�� 440
Nosa Ehanire Osaghae, Jonah Gbemire, Peter Aiko Obabiafo Plaintiffs, Daniel Ikponmwosa.
Suing for themselves and on behalf of Niger Delta People v Republic of Nigeria,
ECW/CCJ/JUD/03/17, 10 October 2017 �� 754
SERAP v Federal Republic of Nigeria, ECW/CCJ/JUD/18/12, 14 December 2012�� 551
Simone Ehivet and Michel Gbagbo v Côte d’Ivoire, ECW/CCJ/JUD/03/13,
22 February 2013�� 185, 327
Siriku Alade v the Federal Republic of Nigeria, ECW/CCJ/JUD/10/12, 11 June 2012�� 197–98, 201–2

Table of Cases xiii
EUROPEAN COURT OF HUMAN RIGHTS

Al-Saadoon and Mufdhi v UK, App. No. 61498/08, 2 March 2010�� 164
Burdov v Russia, App. No. 59498/03, 7 May 2002 �� 222–23
Campbell and Cosans v UK (1982), 4 EHRR 293 [1982] ECHR 1�� 143
Denmark, Norway, Sweden, the Netherlands v Greece (1969) 12 YB 1�� 141
Hornsby v Greece, App. No. 18357/91, 19 March 1997�� 222–23
Hugh Jordan v UK, App. No. 24746/94, 4 August 2001�� 108
Ireland v UK, App. No. 5310/71, 13 December 1977�� 141
Kuric and Other v Slovenia, App. No. 26828/06, 26 June 2012�� 138–39
Selçuk and Asker v Turkey, (1998) 26 EHRR 477 �� 151
Soering v UK, App. No. 14038/88, 7 July 1989�� 164
Tyrer v UK, App. No. 5856/72, 15 March 1978 �� 144–45
INTER-A MERICAN COMMISSION ON HUMAN RIGHTS
Edwards v Bahamas, Case 12.067, Report 48.01, OEA/Ser.L/V/II.111, Doc.20 (2000)�� 120
INTER-A MERICAN COURT OF HUMAN RIGHTS
Advisory Opinion OC-18/03 of 17 September 2003 requested by the United Mexican States
Juridical Condition and Rights of Undocumented Migrants�� 46
Advisory Opinion OC-5/85 of 13 November 1985 on Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism, Inter-Am. Ct. H.R. (Ser. A) No. 5 (1985)��270–71, 286
Advisory Opinion OC-8/87, Series A, No. 8 (1987)�� 150
Claude Reyes et al v Chile�� 269
Loyza Tamayo v Peru�� 523
Velásquez Rodríguez v Honduras, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C)
No. 4 (1988)�� 27, 109–10, 153, 511–12
Yean and Bosico v the Dominican Republic, Order of 8 September 2005�� 138–39
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA
Public Ministry v Dragoljub Kunarac, Radomir Kovac and Vukovic Zoran, Judgment of
12 June 2002, IT-96-23 & 23/1 �� 170
UN HUMAN RIGHTS COMMITTEE
Carpo v Philippines, Communication No. 1077/2002, UN Doc.CCPR/C/77/D/1077/2002�� 120
Gridin v Russian Federation, Communication No 770/1997, UN Doc CCPR/C/69/D/770/1997�� 224
Hijrizi v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/D/161/2000 �� 151
Karnel Singh Bhinder v Canada, Communication No 208/1986,
UN Doc CCPR/C/37/D/208/1986�� 261
Randolph Barrett and Clyde Sutcliffe v. Jamaica, Communication No. 271/1988,
UN Doc. CCPR/C/44/D/271/1988�� 164
Thompson v St Vincent, Communication No. 806/1998, UN Doc.CCPR/C/70/D/806/1998�� 120
NATIONAL JURISDICTIONS
Botswana
Attorney General v Dow [1992] BLR 119, Court of Appeal of Botswana�� 54
State v Ntesang [1995] 4 BCLR 426; [1995] 2 LRC 338�� 164
Thomas Sibanda v the Attorney General of Botswana & Secretary of the Independent Electoral
Commission, Case No. MAHLB-000347-09 (High Court) �� 354–55
Utjiwa Kanane v the State, Botswana Court of Appeal, Criminal Appeal No 9 of 2003
(30 July 2003) unreported�� 65
Ghana
Ahumah Ocansey v the Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v
Attorney General and the Electoral Commission, (2010) AHRLR 165 (Supreme Court)��354–55

xiv Table of Cases
Kenya
Charles Onyango-Obbo and Anor v Attorney General (Constitutional Appeal No. 2 of 2002)
(Supreme Court)�� 266
Cord v the Republic of Kenya and Others, H.C. Petition No. 628 of 2014 (High Court)�� 266
Nigeria
Fawehinmi v Abacha (1996) 9 NWLR (Pt.475) 710 (Court of Appeal)��17–18
General Sani Abacha and Others v Chief Gani Fawehinmi [2000] 4 SCNJ 401 (Supreme Court)�� 209
Mohammed Garuba and Others v Lagos State Attorney General and Others, Report, (1994)
4 Journal of Human Rights Law and Practice 205�� 209
Registered Trustees of the Constitutional Rights Project (CRP) v the President of the Federal
Republic of Nigeria and Others (1994) 4 Journal of Human Rights Law and Practice 218�� 209
South Africa
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and
Land Affairs, 2004, 5, SA 124 (SW)�� 552–53
Chairperson of the Constitutional Assembly, Ex Parte: In Re Certification of the Constitution
of the Republic of South Africa 1996 4 SA 744; 1996 10 BCLR 1253 (CC) �� 547
Government of the Republic of South Africa & Others v Grootboom & Others 2000
11 BCLR 1169 (CC) 1184�� 547
S v Magwanyane and Another, 1995 3 SA 391 (CC)�� 114, 118
South African Constitutional Court in Christian Education South Africa v Minister of
Education [1999] 2 SA 83 (CC)�� 144
Tanzania
Mbushuu v Republic (1994) LRC 349; [1995] 1 LRC 2016 (High Court)�� 164
Uganda
Attorney General v Susan Kigula and 417 Others, Constitutional Appeal No. 3 of 2006 [2009]
UGSC 6, 21 January 2009 (Supreme Court)�� 164
Uganda Law Society and Jackson Karugaba v Attorney General, Constitutional Petitions 02 of
2002 and 08 of 2002 (unreported) (Constitutional Court)�� 239
United States
Brown v Board of Education of Topeka, 347 U.S. 483 (1954) ��92–93
Zimbabwe
Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others
[1993] 4 SA 239 (Supreme Court)�� 164

Table of Legislation
African Charter on Human and Peoples’ Art 13(3)��345–46, 361, 809–10
Rights (ACHPR) Art 14��50, 52
Art 1��16–43, 73, 154, 212, Art 15�� 386–99
375, 551, 678–79, 681–82 Art 16��51, 148, 368, 389–90, 400–36, 553
Art 2�� 29, 44–89, 90, 91, 253, 254–55, Art 16(1)��401, 410–11, 431, 432
262, 322, 335, 345–46, 360, 395, Art 16(2)��401, 410–11
468–69, 478–79, 485, 487–88, Art 17��437–57, 472–73, 558–59
491, 493, 671, 672, 840–41 Art 17(1)�� 437–49
Art 3�� 45–46, 47, 66–100, 214, Art 17(2)�� 449–56
544, 823–24 Art 17(3)�� 449–56
Art 3(1)�� 92, 94–96 Art 18�� 458–83
Art 3(2)�� 92, 96–97 Art 18(1)�� 158–59, 461, 462–63, 464, 470
Art 4�� 29, 50–51, 101–31, 162–63, 248, Art 18(2)�� 462, 463
472, 492, 677, 702–3, 792, 809 Art 18(3)��56–57, 62–63, 461, 464–75,
Art 5�� 6, 21–22, 29, 48–49, 57, 634, 800, 840–41
73, 101, 117, 132–83, 191, 200, 263, Art 18(4)�� 77–78, 81, 423–24, 476, 478–79
318–19, 409, 410, 420, 424, 468–69 Art 19�� 54–55, 72, 484–96, 526
Art 6�� 81–82, 112–13, 156–57, Art 20��358, 497–12, 590–91
162, 184–204, 207–8, 248 Art 20(1)��346, 498, 501, 504, 506
Art 7�� 34, 37, 52, 93, 112–13, 118–20, Art 20(2)�� 504–11
152, 156–57, 163, 190, 205–52, 565, Art 20(3)�� 504–11
566–67, 568, 569, 573, 574–75, Art 21��366–67, 374, 378, 416–17,
702–3, 729–30, 784–85, 786, 835 508–26, 527, 545–46
Art 7(1)��207–21, 237, 241–42 Art 21(1)��511, 512–13
Art 7(1)(a)�� 205, 207–8, 209, Art 21(2)�� 366–67, 512–13, 514–15, 516, 518
212, 221–23, 226 Art 21(4)�� 516, 591
Art 7(1)(b)��211–12, 223–27, 786 Art 21(5)��509, 511, 512
Art 7(1)(c)�� 29, 92–93, 227–33, 239–40, 249 Art 22�� 404, 511, 515, 521–56,
Art 7(1)(d)�� 233–34, 237–38, 239, 553–54, 754–55
566–67, 746 Art 22(1)��530
Art 7(2)�� 242–43, 755, 822 Art 22(2)��526, 527–28
Art 8��51, 188, 253–65, 582–83, 810–11 Art 23��200–1, 498, 538–39, 588–90
Art 9�� 22, 48, 266–93, 296, 305, 697, 810 Art 23(1)�� 539–43
Art 9(1)��269–73, 279 Art 23(2)�� 337, 543
Art 9(2)�� 255, 266, 273–81, 282–83, 284, Art 24�� 418, 545, 547–57
285–86, 287, 296, 576 Art 25�� 28, 558–64, 574
Art 10��261, 294–305, 308, 309, 317 Art 26��237–38, 347–48, 559, 561, 565–198
Art 10(1)��299, 300, 301–4, 358 Art 27�� 135, 269–70, 288, 301, 453–54,
Art 10(2)�� 303–4 580, 581–210, 596
Art 11�� 296, 304, 307–17 Art 27(1)�� 581–208, 583
Art 12��75, 199–200, 318–43, 630 Art 27(2)�� 135, 259, 261, 287, 288, 350–51,
Art 12(1)��325–30, 336 454, 579, 580, 582–83, 596
Art 12(2)��325, 329–31, 336, 544, 585 Art 28�� 584, 596
Art 12(3)�� 331–33 Art 29��303, 477, 576–77, 585–96, 792–93
Art 12(4)�� 334, 544 Art 29(1)�� 585–86
Art 12(5)�� 50, 329, 334, 335–36, 485 Art 29(2)��585, 588, 589
Art 13��47, 49–50, 72, 76–77, 344–63, 471, Art 29(3)��588
504, 590, 783–84, 824 Art 29(4)�� 592–218
Art 13(1)��294–95, 345–46, 348–60, 501–2 Art 29(5)��588
Art 13(2)��344, 345–46, 360–61 Art 29(6)��585, 595–96
xvi Table of Legislation
Art 29(7)��585, 594–221 OTHER INTERNATIONAL AND
Art 29(8)��591 REGIONAL HUMAN RIGHTS
Art 30��597, 667–68 INSTRUMENTS
Art 31�� 576–77, 597, 602–3, 674–75, 839 African Charter on the Rights and Welfare
Art 32�� 597, 603 of the Child (ACRWC)�� 10, 244, 422–23,
Art 33�� 597, 606 438, 449, 461, 470, 472, 576–77, 588
Art 34��597 Art 5��101
Art 35��49, 597 Art 6��139
Art 36�� 597, 606, 809–10 Art 11�� 31–32, 438, 441–42, 443
Art 37��597, 809–10 Art 13��31–32
Art 38�� 597, 607 Art 14��406–7
Art 39��597 Art 15�� 396–97
Art 39(2)��608 Art 45�� 767–68
Art 39(3)��608 American Convention on Human
Art 40��598 Rights (ACHR)��636–37, 743
Art 41��610 Art 4��101
Art 42��610 Art 8��217–18, 786
Art 43�� 610, 627 Art 13�� 270–71
Art 44��610 Art 29�� 270–71
Art 45��291–92, 580–81, 629, 630–5, 637, Convention on the Elimination of All Forms
640–41, 644, 776, 811–12 of Racial Discrimination (CERD) �� 60–61, 782
Art 45(1)�� 636–37, 642–43 Art 1��60–61
Art 45(2)��659 Art 2��60–61
Art 45(3)�� 636–37, 767–68 Art 3��60–61
Art 46�� 629, 630, 634–35, 673–74, 676 Art 4��60–62
Art 47�� 655, 657–19, 661 Art 5��60–61
Art 48�� 655, 661 Art 6��60–61
Art 49�� 655, 660–61, 662 Art 7��60–61
Art 50�� 655, 659 European Convention on Human Rights
Art 51�� 655, 661 (ECHR)�� 8–9, 215–16, 743, 823–24
Art 52�� 655, 662 Art 2��101
Art 53�� 655, 660 Art 6��786
Art 54��655, 662–25, 769–70 Art 14��45–46
Art 55��642, 656–57, 664, 665–47, 673–74, International Covenant on Civil and
675, 684, 717, 753, 828 Political Rights (ICCPR)�� 39–40, 45–46,
Art 56��233–34, 658–59, 667, 684–99, 825 214, 253, 254, 660–61, 701, 782, 823–24
Art 56(1)��667, 693–98 Art 6��117–18, 472, 785–86
Art 56(2)��62, 667, 698–99, 706 Art 7��241
Art 56(3)�� 268–69, 284–85, 568, Art 14�� 205, 217–18, 784, 786, 823–24
667, 706–7, 711 Art 19�� 287, 583, 824–25
Art 56(4)��676, 711–13 Art 22�� 294, 301
Art 56(5)�� 567–68, 667, 713–14, 743 Art 25��345–46, 350–51, 359, 783–84, 824
Art 56(6)�� 268–69, 743, 748 Art 40��254
Art 56(7)��666, 748, 752 Optional Protocol 2��112–13, 115, 116–17
Art 57��664 International Covenant on Economic, Social
Art 58��541, 641, 664, 753–117, 809–10, 828 and Cultural Rights (ICESCR)�� 32, 386,
Art 59��630, 636, 639, 673–74, 767–144, 813 400–1, 449, 716–17
Art 60�� 782, 824 Art 11�� 33
Art 61��782 Art 12��33, 430
Art 62�� 794–806 Protocol to the African Charter on Human and
Art 63�� 807, 808 Peoples' Rights on the Rights of Women in
Art 64��807, 811–12 Africa (Maputo Protocol)�� 12, 31–32, 431,
Art 65��807, 808–9 438, 464–65, 470, 840-–42
Art 66��807, 813–14 Art 1�� 451–52, 468–69
Art 67��807 Art 2�� 451–52, 466–67
Art 68��807 Art 3�� 466–67

Table of Legislation xvii
Art 4�� 466–67 Art 8��826
Art 4(2)��418 Art 10��821
Art 5��451–52, 460 Art 10(2)�� 820–21
Art 6�� 466–67 Art 12(2)��819
Art 7�� 466–67 Art 14(3)�� 819–20
Art 8�� 466–67 Art 15��820
Art 9�� 466–67 Art 19��820
Art 10�� 466–67 Art 20��820
Art 11�� 466–67 Art 23��820
Art 12�� 466–67 Art 25(1)��820
Art 12(1)��438 Art 27��832, 834–35
Art 12(2)��438 Art 27(1)��41, 833–34
Art 13�� 466–67 Art 30��33–34
Art 13(j)��392 Art 33��826
Art 14�� 411, 419–20, 425, 428, Art 34(6)��643–44, 805, 817, 821–23,
430–31, 466–68 824, 827, 831, 833
Art 14(2)��426 United Nations Convention Against
Art 15�� 388, 394, 395–97, 466–67 Torture (UNCAT) 132–33, 151
Art 15(a)�� 393–94 Art 1��140–41, 144, 149, 786
Art 16�� 466–67 Art 5��149
Art 17�� 466–67 Art 15��220
Art 18�� 466–67 Art 16��142
Art 19�� 466–67 United Nations Convention on the Elimination
Art 20�� 466–67 of All Forms of Discrimination Against
Art 21�� 466–67 Women (CEDAW)��461,
Art 22�� 466–67 464–65, 466–67, 795, 841
Art 23�� 466–67 Art 1�� 63
Art 24�� 466–67 United Nations Convention on the
Protocol to the African Charter on Human Rights of Persons with Disabilities
and Peoples’ Rights on the Establishment (CRPD)��477, 564, 814, 842–43
of the African Court on Human and Peoples’ Art 33��476–77, 564
Rights ��11–12, 598, 767–68, 792–93, 815–44 United Nations Convention on the
Art 2��826 Rights of the Child (UNCRC) ��439, 461, 474
Art 3(1)�� 764–65 United Nations Optional Protocol to the
Art 4��826 Convention Against Torture (OPCAT)�� 10,
Art 5��643–44, 817 155–56, 176, 564, 790
Art 5(1)��823, 826, 831 Universal Declaration of Human Rights
Art 5(2)��821, 831–32 (UDHR)�� 9, 60–61, 167–68,
Art 5(3)�� 643–44 253, 782, 823–24
Art 6(1)��825 Art 19��583
Art 6(3)��825, 826, 827 Art 25�� 823–24
Art 7�� 783–84, 823–24 Art 27��449

List of Abbreviations
ACERWC African Committee of Experts on the Rights and Welfare of the Child
ACHPR African Charter on Human and Peoples’ Rights
ACHR American Convention on Human Rights
ACJ African Court of Justice
ACRWC African Charter on the Rights and Welfare of the Child
AGA African Governance Architecture
AHRLJ African Human Rights Law Journal
AHRLR African Human Rights Law Reports
AIPPA Access to Information and Protection of Privacy Act
AJICL African Journal of International and Comparative Law
AMU African Maghreb Union
APCOF African Policing Civil Oversight Forum
APRM African Peer Review Mechanism
APT Association for the Prevention of Torture
AU African Union
AUC African Union Commission
CAL Coalition of African Lesbians
CEDAW UN Convention on the Elimination of All Forms of Discrimination
Against Women
CEEAC Economic Community of Central African States
CEN-SAD Community of Sahel-Saharan States
CEJIL Center for Justice and International Law
CERD Convention on the Elimination of All Forms of Racial Discrimination
COMESA Common Market for Eastern and South Africa
CPTA Committee on Prevention of Torture in Africa
CRPD UN Convention on the Rights of Persons with Disabilities
CSO civil society organisation
CSSDCA Conference on Security, Stability, Development and Cooperation
in Africa
DPA Department of Political Affairs (of the AU)
DRC Democratic Republic of the Congo
EAC East African Community
ECHR European Convention on Human Rights
ECOSOCC Economic, Social and Cultural Council
ECOWAS Economic Community of West African States
EHRLR European Human Rights Law Review
FGM female genital mutilation
GIMAC Gender Is My Agenda Campaign
HRQ Human Rights Quarterly
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
xx List of Abbreviations
ICJ International Commission of Jurists

ICLQ International and Comparative Law Quarterly
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY Criminal Tribunal for the former Yugoslavia
IDP internally displaced person
IGAD Intergovernmental Authority on Development
IHRDA Institute for Human Rights and Development in Africa
ILC International Law Commission
IWGIA International Working Group on Indigenous Affairs
LEDAP Legal Defence and Assistance Project
NANHRI Network of African National Human Rights Institutions
NEPAD New Partnership for Africa’s Development
NGO Non-governmental organisation
NHRI national human rights institution
NQHR Netherlands Quarterly on Human Rights
OAU Organisation of African Unity
OHADA Organisation pour l’Harmonisation des Droits d’Affaires en Afrique
OHCHR Office of the High Commissioner for Human Rights
OPCAT UN Optional Protocol to the Convention Against Torture
OSJI Open Society Justice Initiative
PACE Parliamentary Assembly of the Council of Europe
PAHRI Pan-African Human Rights Institute
PAP Pan-African Parliament
PRC Permanent Representatives’ Committee
PRI Penal Reform International
PSC Peace and Security Council
REC Regional Economic Community
SADC Southern African Development Community
SERAP Socio-Economic Rights Action Center
UDHR Universal Declaration of Human Rights
UMA Arab Maghreb Union
UN United Nations
UNCAT United Nations Convention Against Torture
UNCRC United Nations Convention on the Rights of the Child
UNESCO United Nations Educational, Scientific and Cultural Organization
UNHCR United Nations High Commissioner for Refugees
UNSPT United Nations Subcommittee on Prevention of Torture
WILDAF Women in Law and Development in Africa

1. Introduction
A. Human Rights in the Organisation of African Unity and

the African Union
1. The Organisation of African Unity
When the Organisation for African Unity (OAU) was created in 1963 among the prin-
cipal human rights issues, even if they were not necessarily termed such, with which it was
occupied was decolonisation for all African peoples, in the context of self-determination,
and ending apartheid in South Africa.1 The OAU, which was to become a key actor in
the success of the future African human rights system, was established by a Charter whose
principles were clearly grounded in ‘freedom, equality dignity and justice’,2 the ‘unity and
solidarity of the African States’, and a ‘better life for the peoples of Africa’,3 but could not
have foreseen the breadth of what would be considered human and peoples’ rights which
would be included in later African instruments. As Dugard wrote not long after the OAU
Charter was adopted, this was really a ‘charter of liberation’.4
Having acquired their independence from colonial rule, and with some African peoples
still, during the 1970s and 1980s, fighting for this right, it is predictable that the OAU
and these new African States would be fiercely protective of their sovereignty and corres-
ponding obligations not to interfere in the internal affairs of others.5
The focus on decolonisation and the anti-apartheid struggle helped to introduce the
language of human rights into the discussions at the level of the political organs of the
OAU.6 As the years advanced and more States became independent, and with the end
of apartheid in South Africa in the 1990s, so the OAU’s attention shifted to other con-
siderations. Globalisation, development and unconstitutional changes of government
started to become increasingly important. Its principal human rights body, the African
Commission on Human and Peoples’ Rights (‘African Commission’), created under the
1981 African Charter on Human and Peoples’ Rights, began operating in 1987. With its
headquarters based in The Gambia on the other side of the continent, its work was often
forgotten by the Addis Ababa organs, and the African Commission did not always seem
1
See R. Murray, Human Rights in Africa: From the Organisation of African Unity to the African Union,
Cambridge University Press, 2004, chapter 1. See also, OAU documents: Resolution on South Africa, CM/
Res.1427 (LVII); Resolution CIAS/Plen.2/Rev.2, as the first resolution of the OAU.
2
Preamble, OAU Charter. 3
OAU Charter, Article II.
4
J. Dugard, ‘The Organisation of African Unity and Colonialism: An inquiry into the plea of self-defence
as a justification for the use of force in the eradication of colonialism’, 16 ICLQ (1967) 157–190.
5
K. Mathews, ‘The Organization of African Unity’, in D. Mazzeo, African Regional Organizations,
Cambridge University Press, 1984, 49–84. M-C. D. Wembou, ‘The OAU and international law’ in Y. El
Ayouty, The Organization of African Unity after Thirty Years, Praeger, Westport Connecticut, 1994, 15–26.
A. Clapham, Africa and the International System. The Politics of State Survival, Cambridge University Press,
1996. G. Naldi, The Organisation of African Unity: An Analysis of Its Role, Mansell, 2nd edition, 1999.
6
See e.g. Lusaka Manifesto: A Policy Statement for Decolonisation in Respect of Southern Africa,
adopted by the OAU and UN, Resolution GA 2505, UN Doc. A/PV.1815, 20 November 1969; A. Aidoo,
‘Africa: Democracy without human rights’, 15 HRQ (1993) 703–715; R. Murray, Human Rights in Africa: From
the Organisation of African Unity to the African Union, Cambridge University Press, 2004, chapter 1.

2 1. Introduction
to have the confidence to alert them to its key position in the human rights architecture
of the continent. Consequently, while the OAU cannot necessarily be said to have neg-
lected human and peoples’ rights from its discussions, neither was the key treaty and its
institution always integral to its discussions.
2. The Drafting of an African Charter on Human and Peoples’ Rights

and the Subsequent Interpretation of Its Provisions
Adopted in 1981,7 the primary instrument on human rights for the African continent, the
African Charter on Human and Peoples’ Rights (ACHPR), has now received near universal
ratification from all African Union (AU) Member States bar Morocco which, having now
ratified the AU Constitutive Act in 2017, gives some hope that accession to the ACHPR will
follow.8
The decision to adopt a regional human rights instrument is the result of a number
of different pressures and initiatives.9 These included regional seminars organised by
the UN,10 the sustained commitment by African jurists and organisations such as the
International Commission of Jurists,11 as well as the political context of the time.12
A 1967 Dakar Conference of African jurists from Francophone Africa called for con-
sideration of the ‘feasibility of creating a regional system for the protection of human
rights in Africa’ with an ‘inter-African Commission on human rights’,13 followed by
what Ouguergouz considers ‘pivotal’ seminars in 1978 around economic development.14
A year later in September 1979 in Monrovia in Liberia, after various activities by the UN
Economic Commission for Africa, a seminar was held and discussions took place on the
basis of several documents including two prepared by the eminent T. O. Elias and Judge
7
27 June 1981. 21 ILM (1982) 58.
8
Morocco has been encouraged to do so by the AU Executive Council in January 2018, see Decision On
The African Commission On Human And Peoples’ Rights, EX.CL/Dec.995(XXXII), January 2018, para 7.
9
F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, chapter 1; R. Murray, Human Rights in
Africa: From the Organisation of African Unity to the African Union, Cambridge University Press, c hapter 1. See
also F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The travaux préparatoires in the light of
subsequent practice’, 25 Human Rights Law Journal (2004) 313–325.
10
Regional Seminar on Human Rights in Developing Countries, 8–22 February 1966, UN Doc.ST/TAO/
HR/25; Seminar on Establishment of Regional Commissions on Human Rights with Special Reference to
Africa, 2–15 September 1969, Cairo, Egypt, UN Doc.ST/TAO/HR/38; Seminar on Study of New Ways and
Means to Promote Human Rights with Special Reference to the Problems and Needs of Africa, 23 October–5
November 1973, Dar-es-Salaam, Tanzania, UN Doc.ST/TAO/HR/49.
11
African Conference on the Rule of Law, Lagos (Nigeria), 3–7 January 1961: Report on the Proceedings
of the Conference, International Commission of Jurists, Geneva, 1961; Conference of French-Speaking
African Jurists, Dakar, Senegal, 5–9 January 1967, resulting in the Dakar Declaration, see 29 Bulletin of
the International Commission of Jurists, 1967. F. Ouguergouz, The African Charter on Human and Peoples’
Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff,
2003, at 20; F. Viljoen, ‘Human rights in Africa: Normative, institutional and functional complementarity and
distinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216, at 199–200.
12
C. A. Odinkalu, ‘International criminal justice, peace and reconciliation in Africa: Re-imagining an
agenda beyond the ICC’, XL Africa Development (2015) 257–290, at 267; K. O. Kufuor, The African Human
Rights System: Origin and Evolution, Palgrave Macmillan, 2010, at 33–35.
13
Conference of French-Speaking African Jurists, Dakar, Senegal, 5–9 January 1967, resulting in the Dakar
Declaration, see 29 Bulletin of the International Commission of Jurists, 1967.
14
Human Rights and Economic Development in Francophone Africa, Institute of International Law
and Economic Development and Faculty of Law of the University of Rwanda, H. Hannum, ‘The Butare
Colloquium on human rights and economic development in Francophone Africa: A summary and analysis’,

A. Human Rights in the OAU and the African Union 3
Keba M’Baye.15 A few months after, in Dakar, Senegal, the Heads of State convened a
further meeting at which Senegal’s President Leopold Senghor set out the context to the
draft African Charter being considered by African experts.16 This draft ‘Dakar’ text de-
veloped the substantive content of the Charter,17 and was then presented to a ministerial
conference in The Gambia under the invitation of its president.18 After a rather luke-
warm reception and little progress, the discussions were galvanised a few weeks later after
the assassination of the Liberian President William Tolbert, leading to a commitment to
human rights and to finalise the draft.19 Consequently in January 1981 a further min-
isterial level meeting was held in Banjul, The Gambia, and a text finally adopted which
was then submitted to the 37th Session of the OAU’s Committee of Ministers. Although
there was some discussion then around the powers of the proposed African Commission
perhaps going too far, it was with the encouragement of President Dawda Jawara of The
Gambia that on 27 June 1981 the ACHPR was adopted.20
As Viljoen notes, although there were therefore a number of drafts of the ACHPR,21
there is limited information available on the discussions that took place during these
various meetings: a ‘cohesive and extensive narrative’ is lacking.22
The drafting process reflects two diverse State perspectives which then become ap-
parent in the text of the ACHPR: ‘some aimed at ensuring a genuine human rights
friendly supra-national institutional framework, which would inevitably also see an ero-
sion of state sovereignty; others were at the table only to appease public opinion and
amend reputations to deflect international and domestic criticism’.23 How these debates
played out in respect of the different provisions in the ACHPR are discussed in each of
the relevant chapters of this Commentary.
During the crafting of the ACHPR there were also different suggestions raised as to the
form that any monitoring body should take, including a plurality of commissions, as well
1 Universal Human Rights (1979) 63–81. Dakar Colloquium on Human Rights, ‘Association Sénégalaise
d’Etudes et de Recherches Juridiques and the ICJ’, 22 Revue Sénégalaise de Droit, (1977). F. Ouguergouz,
The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable
Democracy in Africa, Martinus Nijhoff, 2003, at 23–25.
15
HR/LIBERIA/1979/BP/2; HR/LIBERIA/1979/BP.3.
16
29 November–8 December 1979, Address delivered by H. E. Leopold Sedar Senghore, President of the
Republic of Senegal, OAU Doc.CAB/LEG/67/5.
17
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 42–43.
18
Report of the Secretary-General on the Draft African Charter on Human and Peoples’ Rights, Council of
Ministers, 37th Ordinary Session, 15–21 June 1981, OAU Doc. CM/1149 (XXXVII).
19
OAU Doc. CM/Res.792 (XXXV). See F. Ouguergouz, The African Charter on Human and Peoples’
Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa, Martinus Nijhoff,
2003, at 44–46.
20
Dignity and Sustainable Democracy in Africa, Martinus Nijhoff, 2003, at 47–48.
21
The UN proposal, as provided in B. G. Ramcharan, ‘The travaux preparatoires of the African Commission
on Human and Peoples’ Rights’, 13 HRLJ (1992) 307–309, Annex II; the Monrovia proposal, the M’Baye
Draft, see C. Heyns, Human Rights Law in Africa, 1999, Vol. 4, 2002, at 65–77; the Dakar Draft, CAB/LEG/
67/3, Rev.1; and the ACHPR itself, see F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The
travaux preparatoires in the light of subsequent practice’, 25 Human Rights Law Journal (2004) 313–325,
at 315.
22
F. Viljoen, ‘The African Charter on Human and Peoples’ Rights: The travaux preparatoires in the light of
subsequent practice’, 25 Human Rights Law Journal (2004) 313–325, at 324.
23
F. Viljoen, ‘Human rights in Africa: Normative, institutional and functional complementarity and dis-
tinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216, at 199.

4 1. Introduction
as a judicial body, suggested as early on as 1961.24 A commission initially set up within

the structures of the OAU failed to operate,25 resulting in a separate commission being
the final choice, but not without some discussion over its functions.26
As the third regional system to be established and for some time seen therefore as the
baby of the regional treaty bodies, many even in the human rights world still dismiss
the African system as having little to add. The African Commission was considered (and
perhaps hoped by some) to be a weak institution, ‘a façade, a yoke that African leaders
have put around our necks’,27 criticism which followed it, sometimes unfairly, through
its early years.28 Concerns towards the apparent unusual content of the ACHPR rights,
its ‘claw-back clauses’,29 collective rights30 and sections on individual duties31 meant that
the African system was starting on the back foot, with a critical eye being cast over it
from the inception. As a result, it could easily be dismissed. This is a huge oversight. As
this Commentary illustrates, the African Commission, since its inception, and now the
African Court have developed a richness of jurisprudence and detail on the content of the
ACHPR and in so doing have also informed the international human rights system and
arguably ‘reconstruct the human rights corpus’.32
In the process, the African Commission has gained in confidence and has inspired
confidence in others. It is now, for example, more common for senior State officials
to be present during its sessions; for States to at least commit to implementing the
African Commission’s findings (even if it is somewhat wanting in practice); for statu-
tory or constitutional national human rights institutions to be sufficiently interested
to acquire affiliated status and attend the meetings; and for several hundred civil
society organisations and non-governmental organisations to put their faith in the
African Charter bodies to address violations that they or those they are representing
have suffered.
Yet the system is not without its many challenges and flaws. There are inconsistencies
in its jurisprudence; too much time is taken to adopt decisions on communications and
there is a lack of information on the extent of implementation of its findings; and still,
after three decades, there is a lack of knowledge or awareness of even the existence of
the ACHPR, its Commission and Court, let alone the rich interpretation of the rights
within it.33
24
African Conference on the Rule of Law, Lagos, 3–7 January 1961.
25
See R. Murray, ‘Decisions by the African Commission on individual communications under the African
Charter on Human and Peoples’ Rights’, 46 ICLQ (1997) 412–434, at 412.
26
Working Group on the Monrovia Seminar, 1979, UN Doc.ST/HR/SER.A/4 (1979). See further,
Chapter 29 (Articles 30–40).
27
M. wa Mutua, ‘The African human rights system in comparative perspective: The need for urgent refor-
mation’, 5 Legal Forum (1993) 31–35; R. Gittleman, ‘The Banjul Charter on Human and Peoples’ Rights: A
legal analysis’, 22 Virginia Journal of International Law (1982) 667–692.
28
U. O. Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for more effective-
ness’, 13(1) Annual Survey of International and Comparative Law (2007) 179–190, at 180–181.
29
See for further discussion Chapter 2 (Article 1).
30
See for further discussions, Chapters 20–25 (Articles 19–24).
31
See further, Chapter 28 (Articles 27–29); M. wa Mutua, ‘The Banjul Charter and the African Cultural
Fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995) 339.
32
M. wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An evaluation of the language
of duties’ 35 Virginia Journal of International Law (1995) 339, at 344.
33
M. Ssenyonjo, ‘Responding to human rights violations in Africa: Assessing the role of the African
Commission and Court on human and peoples’ rights (1987–2018), 7 IHRLR (2018) 1–42.

3. Key Events and the Creation of the AU

Key events and resulting declarations at the OAU and AU level and at that of the African
Commission and Court reflect different points of their history of human and peoples’
rights on the continent and illustrate shifts in focus over time. Conflicts in a number of
African States throughout the decades,34 the genocide in Rwanda35 and other political
crises also played a part in the development of the broad spectrum of human and peoples’
rights norms and institutions under the umbrella of the AU.
These issues are apparent in several declarations adopted by the OAU and AU. The 1990
Declaration on the Political and Socio-Economic Situation in Africa and the Fundamental
Changes taking Place in the World36 marked not only the end of the Cold War and the im-
pact of this on the continent, but also the OAU’s perception of what human rights then
meant for Africa. Included in this Declaration was reference to greater attention on ‘self-
reliant, human-centred and sustainable development on the basis of social justice and col-
lective self-reliance’, but that these issues were the responsibility of African governments,
rather than just external actors. It recognised the importance of a ‘political environment
which guarantees human rights and the observance of the rule of law’; the ‘involvement
of all including in particular women and youth in the development efforts’; and the reso-
lution of conflicts.37 The 1998 Ouagadougou Declaration, adopted by the 34th Session of
the Assembly of Heads of State of the OAU, reiterated many of these issues.38
A series of ministerial and ambassadorial conferences organised at the level of the OAU
illustrate the commitment of the Organisation to human rights and their resulting declar-
ations are key indicators of their perspective on not only the ACHPR but also the place
of the African Commission, at that time the only ACHPR organ in existence, within the
OAU. The Grand Baie (Mauritius) Declaration and Plan of Action emanating from the
OAU’s First Ministerial Conference on Human Rights in Africa in April 1999 restated
the universality and indivisibility of human rights, noted in particular the need for ef-
fective protection of the rights of women and the child, persons with disabilities and
those living with HIV/AIDS and committed to adopting a ‘multi-faceted approach’ to
eliminating violations on the continent.39 Civil society received attention and, among
other matters, the Declaration underscored that the primary responsibility for promotion
and protection of rights lies with the State.40
34
E.g. Resolution on Liberia, CM/Res.1650 (LXIV).
35
Report of the Secretary-General on the Establishment of an International Panel of Eminent Personalities
to Investigate the Genocide in Rwanda and Surrounding Events, CM/2048 (LXVII). The creation of the Panel
was approved in 1997, Establishment of the Panel of Eminent Personalities to Investigate the Genocide in
Rwanda and the Surrounding Events, Doc. CM/2063 (LXVIII); International Panel of Eminent Personalities
to Investigate the 1994 Genocide in Rwanda and Surrounding Events. Special Report, 7 July 2000; R. Murray,
‘The report of the OAU’s international panel of eminent personalities to investigate the 1994 Genocide in
Rwanda and the surrounding events’, 45(1) JAL (2001) 123–133.
36
Adopted at the 26th Session of the Assembly of Heads of State of the OAU, AHG/Decl.1 (XXVI) 1990.
37
Adopted at the 26th Session of the Assembly of Heads of State of the OAU, AHG/Decl.1 (XXVI) 1990,
paras 8, 10 and 11 respectively.
38
AHG/Decl.1 (XXXIV).
39
Grand Baie (Mauritius) Declaration and Plan of Action, April 1999; Resolution on the Ministerial
Conference on Human Rights in Africa, CM/Res.1673 (LXIV). Decision on the Report of the Secretary
General on the Ministerial Conference on Human Rights, CM/Dec.475 (LXX).
40
Grand Baie (Mauritius) Declaration and Plan of Action, April 1999; Resolution on the Ministerial
Conference on Human Rights in Africa, CM/Res.1673 (LXIV). Decision on the Report of the Secretary
General on the Ministerial Conference on Human Rights, CM/Dec.475 (LXX). See also Algiers Declaration,
AHG/Decl.1 (XXXV).

6 1. Introduction
When the OAU was transformed into the African Union in 2001, the drafting of
the AU’s founding treaty, the Constitutive Act, provided opportunities to introduce
greater reference to human rights issues into the political entity, and reflect how far
the continent had come in recognising them. The Constitutive Act does indeed make
reference in its principles and objectives to ‘promote and protect human and peoples’
rights in accordance with the African Charter on Human and Peoples’ Rights and
other relevant human rights instruments’; promotion of gender equality; respect for
democratic principles, human rights, the rule of law and good governance; promotion
of social justice to ensure balanced economic development; respect for the sanctity of
human life, condemnation and rejection of impunity and political assassination, acts
of terrorism and subversive activities; condemnation and rejection of unconstitutional
changes of governments’.41 However, its organs echo in part those under the OAU: the
Assembly of Heads of State; an Executive Council of Ministers (formerly the OAU
Committee of Ministers) and a Permanent Representatives Committee of ambassadors.
It also created new organs including a Pan-African Parliament; an Economic, Social
and Cultural Council (ECOSOCC) and an African Court of Justice.42 What it did
not do was include in this list the African Commission on Human and Peoples’ Rights
nor the African Committee on the Rights and Welfare of the Child (ACERWC). Why
this did not occur is not entirely clear, and could be put down, in part, to the relative
invisibility of the African Commission’s work and to its inability to advocate strongly
for its inclusion among those organs in Article 5. More than a mere vanity project,
however, the failure to list the African Commission and ACERWC as organs of the
AU has implications for their place within the Union, raising challenges on not only
how they are perceived but also on how they request and receive funds from the AU
political organs.43
Mechanisms such as the OAU’s Conference on Security, Stability, Development and
Cooperation in Africa (CSSDCA), which resulted in the New Partnership for Africa’s
Development (NEPAD)44 and the monitoring mechanism created in the African Peer
Review Mechanism (APRM), include human rights standards within their mandates,45
and with whom the African Commission has now formalised a relationship.46
The Kigali Declaration adopted at the First Ministerial Conference of the AU on
human rights that took place in 2003 signals that human rights issues would continue
to be relevant to the newly formed AU.47 Reaffirming many of the commitments in the
Grand Baie Declaration it further called on States to ensure independent justice sys-
tems, reject impunity, address terrorism and racism as well as refugees and internally
displaced persons, ensure a free and independent media and human rights education
and called on States to develop a protocol on the rights of persons with disabilities and
the elderly. The AU policy organs were asked to consider providing further resources to
strengthen the African Commission and States were called on to protect civil society
41
Constitutive Act, Articles 3 and 4. 42
Constitutive Act, Article 5.
43
See Chapters 29 and 30 (Articles 30–40, Articles 41–44). See also regarding the ACERWC as an organ
of the AU, Chapter 39 (Articles 63–68).
44
AHG/235 (XXXVIII), Annex I.
45
Objectives, Standards, Criteria and Indicators for the African Peer Review Mechanism (APRM), NEPAD/
HSGIC-03-2003/APRM/Guideline/OSCI, 9 March 2003.
46
See Chapter 31 (Articles 45 and 46).
47
Kigali Declaration, First African Union Ministerial Conference on Human Rights, 8 May 2003.

organisations. A Solemn Declaration on Gender Equality adopted by the Assembly of

the AU in 200448 set out commitments of States such as ratifying the Protocol on the
Rights of Women and ensuring gender equality in all organs of the AU and at the na-
tional and local levels.
These and other documents result in a complex web of institutions and standards
under the auspices of the AU, of which the ACHPR and its Commission and Court are
key, but not alone. The degree of coordination between them, consistency in approaches
and mutual support does occur but in some instances, has been lacking, as will be noted
in this Commentary. In recognition of the diversity of bodies and instruments relevant
to human rights, the AU’s Human Rights Strategy for Africa 2012–2016, for example,
calls for greater coordination and collaboration between AU and sub-regional organs and
institutions, as well as ‘ensure effective implementation of human rights instruments and
decisions’.49
Some of this is being done through the African Governance Architecture (AGA).50
One of the consequences of the Shared Values of the AU adopted in 2011 this was in-
tended to be a ‘platform for dialogue between the various stakeholders who are mandated
to promote and strengthen democratic governance in Africa’,51 these stakeholders being
the relevant AU organs as well as the regional and economic communities, and thereby
the African Commission, African Court and ACERWC. Its purpose therefore is to co-
ordinate and harmonise their respective activities. Among the objectives are to increase
ratification and implementation of the relevant AU instruments, including the ACHPR;
‘[e]‌nhance the capacity of AU organs, institutions and RECs to support Member States
to strengthen governance and consolidate democracy through implementation of shared
values agenda’; ‘[c]oordinate evaluation and reporting on implementation and compli-
ance with AU norms on governance and democracy’; and ‘[f ]acilitate joint engagement
and deepen synergy with the African Peace and Security Architecture (APSA) in stra-
tegic interventions: preventive diplomacy, conflict prevention and post-conflict, recon-
struction and development in Africa’. Its ‘Guiding Principles’ are those derived from the
Constitutive Act, the African Charter on Elections, Governance and Democracy and
other AU instruments, namely:
[e]‌ffective participation of the African peoples in strengthening and consolidating democratic
governance in Member States and continental affairs; Respect for democratic principles, human
rights, the rule of law and good governance; Holding of regular, transparent, free and fair elec-
tions; Promotion of the principle of separation of powers; Promotion of gender equality and
youth empowerment; Promotion of transparency and fairness in the management of public affairs;
Condemnation and rejection of acts of corruption, related offenses and impunity; Condemnation
and rejection of unconstitutional changes of governments. Strengthening political pluralism and
recognizing the role, rights and responsibilities of legally constituted political parties, including
opposition political parties.
48
Solemn Declaration on Gender Equality, adopted by the Assembly of Heads of State and Government
of the AU, 8 July 2004.
49
Department of Political Affairs, African Union Commission, Human Rights Strategy for Africa, 2012–
2016, para 24.
50
African Union Commission, African Governance Architecture Framework Document.
51
Assembly/AU/Dec.1 (XVI). Decision on the Report of Member States’ Experts Consultations on the
Theme of the Sixteenth Ordinary AU Assembly ‘Towards Greater Unity and Integration through Shared
Values’, Doc.EX.CL/619 (XVIII).

8 1. Introduction
The Department of Political Affairs hosts its secretariat. Given that, as will be seen throughout
this Commentary, the degree of mutual awareness among each of the different arms of the
AU who have some remit over human and peoples’ rights and subsequent coordination
and harmonisation is somewhat lacking, this platform is a welcome initiative.52 In order to
be effective it will need to ensure that it builds upon mechanisms that are already in exist-
ence, such as the APRM53 (and the recent formalisation of the relationship with the African
Commission in this regard is therefore encouraging). It will also need to ensure that it does
not simply add another layer of bureaucracy, rather to facilitate the engagement so clearly
required.
B. An ‘African’ Human Rights System?

Early writings on the African Charter often highlight what are seen to be the unusual elem-
ents of the ACHPR: the inclusion of both civil and political rights and economic, social and
cultural rights in one document; the reference to collective rights in Articles 19–24 and the
concept of individual duties, leading to comments that this is very much an ‘African’ instru-
ment which may or may not question the universality of human rights.54
The importance of African ownership and African identity have pervaded the estab-
lishment of the OAU and its and that of the AU’s subsequent development in the dec-
ades that followed. They are themes which are often equated with the African human
rights system, but usually in the context of the universality/cultural relativist debate.
Some of these more simplistic discussions mask the great sense of pride the continent
has in developing its own institutions, standards and mechanisms and can sometimes
result in a too-easy dismissal of the contributions that these institutions have made to
progressing international human rights law.55 As will be seen throughout the chapters of
this Commentary the ACHPR is the result of a desire to adopt an instrument written
by Africans for Africans. Yet its content and the way in which the provisions have been
interpreted are a fascinating blend of examples from UN documents and instruments (to
which many African States are also party), the European Convention on Human Rights
and its Court’s and former Commission’s jurisprudence and those of the inter-American
system. While the clarity of the interpretation and application of these international and
regional instruments by the African Court and Commission should rightly be criticised,
and indeed has tended to result in the former being ‘embraced with open arms in an un-
critical fashion’,56 the result, as Viljoen argues, is that any ‘fragmentation [of international
norms] is overstated’ and in fact ‘despite its particular characteristics, and some peculiar
52
G. M. Wachira, ‘Consolidating the African governance architecture’, SAIIA Policy Briefing (2014) 96.
53
N. Tissi and F. Aggad-Clerx, ‘The Road Ahead for the African Governance Architecture: An Overview of
Current Challenges and Possible Solutions’, Occasional Paper No. 174, South African Institute of International
Affairs, February 2014. Also S. Gruzd, ‘African Governance Architecture: Reflections on the African Peer
Review Mechanism’, Policy Brief 54. Johannesburg: Centre for Policy Studies, 2011.
54
See Chapter 28 (Articles 27–29). Also A. An-Na’im, Human Rights in Cross-Cultural Perspectives: A
Quest for Consensus, University of Pennsylvania Press, 1995; A. An-Na’im, Cultural Transformation and
Human Rights in Africa, Zed Books, 2002.
55
See e.g. R. Murray, ‘International Human Rights: Neglect of perspectives from African institutions’,
55(1) ICLQ (2006) 193–204.
56
C. Heyns, ‘The African regional human rights system: In need of reform?’, 2 AHRLJ (2001) 155–174,
at 168.

C. The Preamble 9
features, the charter and its interpretation in the main resembles and resonates on the
same wavelength as other international human rights standards’.57
One of the consequences of the African Commission looking outside the continent
when interpreting the ACHPR is that ironically, although this is improving, it has drawn
less on the many other instances of progressive and dynamic case law, constitutions and
standards from the very continent that the Charter serves.58 Conversely, when operating
externally itself, it has clearly brought its own experiences into the international arena,
being willing to push in directions that other bodies may not yet have considered.59
C. The Preamble
The preamble to the M’Baye Draft cited a number of key points including international
cooperation with reference to the UN and the Universal Declaration of Human Rights
(UDHR); that ‘the essential rights of man are not derived from one’s being a national
of a certain state, but are based upon attributes of the human personality, and that they
therefore justify international protection in the form of a charter or a convention reinfor-
cing or complementing the protection provided by the domestic laws’; and human rights
meant civil and political as well as economic, social and cultural rights. Further, ‘the ideal
of free men enjoying freedom from fear and want can be achieved only if conditions are
created whereby everyone may enjoy his economic, social, and cultural rights, as well as
his civil and political rights’.60
The Dakar Draft did incorporate some of these elements, but is more embracing in ref-
erencing significant issues which were clearly a priority to African States at the time: the
importance of eradicating all forms of colonialism, as identified in the OAU Charter,
Article 2; and the ‘right to development’; the ‘importance traditionally attached in Africa
to these rights and freedoms’; individual duties; and liberation of African territories and
all forms of foreign exploitation and domination.61 When discussing the final version of
the ACHPR it is of note that the term ‘zionism’ was included. The word was, however,
as the report of the drafting meeting explains, ‘put in square brackets so that the meeting
might decide later on whether the square brackets should be removed or whether the
Assembly of Heads of State and Government should be left to take the appropriate de-
cision’.62 These brackets were later removed, although the report did not explain why.63
Subsequent resolutions and decisions adopted by the OAU and AU have consistently
reiterated support for the Palestinian people ‘in their struggle against Israeli occupation’
as a self-determination issue.64
57
tinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216, at 193 and 194.
58
See further discussion in Chapter 37 (Articles 60 and 61).
59
See e.g. Chapter 20 (Article 19) and the discussion on indigenous peoples.
60
M’Baye Draft, preamble. 61
Dakar Draft, preamble.
62
Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’
Rights (Banjul, The Gambia 7–19 January 1981), Annex Ii, Rapporteur’s Report, CAB/LEG/67/Draft Rapt.
Rpt (II) Rev.4, para 28.
63
Second Session of OAU Ministerial Conference on the Draft African Charter on Human and Peoples’
Rights (Banjul, The Gambia 7–19 January 1981), Annex Ii, Rapporteur’s Report, CAB/LEG/67/Draft Rapt.
Rpt (II) Rev.4, para 113.
64
E.g. Declaration on the Situation in Palestine and the Middle East, Assembly/AU/Decl.1 (XXX),
January 2018.

10 1. Introduction
The Preamble in the adopted version of the ACHPR is closer to the Dakar Draft in the
above matters, thereby referencing individual and collective nature of rights, as well as
corresponding duties of the individual, with particular attention to economic, social and
cultural rights and the right to development, and the liberation of Africa from coloni-
alism, apartheid and zionism. Also inserted are ‘the virtues of their historical tradition and
the values of African civilization which should inspire and characterize their reflection on
the concept of human and peoples’ rights’.
Indeed, much of what is said in the Preamble has stood the test of time and is as im-
portant now as it was in the early 1980s. Whilst apartheid and colonialism may have
been eradicated by the late 1990s, the legacy of colonialism still holds some sway. The
reference to international cooperation with regard to the UN has maintained significance
throughout the last thirty years of the Commission’s operation in terms of influencing
the creation of parallel standards,65 special mechanisms,66 joint missions67 and promo-
tional activities such as seminars. The adoption of the Addis Ababa Roadmap in 2012,
the result of a seminar bringing together the special procedures of the UN and African
Commission,68 with some degree of success,69 and a First African Union—United Nations
High Level Dialogue on Human Rights in April 2018, building upon a Memorandum of
Understanding signed between the AU and Office of the High Commissioner for Human
Rights (OHCHR) in 2010,70 are important initiatives.
D. Elaboration of the African Human Rights System

through Protocols and Treaties
One tactic, which will be seen in the analysis of a number of provisions of the ACHPR,
to encourage African States to ratify or implement provisions in UN instruments is
to formulate similar standards through the OAU and AU and under the ACHPR.
Examples include the Robben Island Guidelines on torture prevention (responding
to the need to improve the ratification status of the UN’s Optional Protocol to the
Convention Against Torture (OPCAT)71); and the rights of persons with disabilities
(with an additional protocol to the ACHPR72). It was also one of the initiatives behind
the adoption of separate treaties on human rights issues by the OAU and AU. Thus in
1990 the OAU adopted the African Charter on the Rights and Welfare of the Child, the
result, in part, of perceptions that African States were omitted from the drafting of the
UN instrument.73
65
E.g. see around albinism, see Chapter 3 (Article 2) and Chapter 19 (Article 18).
66
E.g. Committee on the Prevention of Torture in Africa, formerly the Follow-Up Committee on the
Robben Island Guidelines, see Chapter 6 (Article 5).
67
68
Dialogue between Special Procedures Mandate-Holders of the UN Human Rights Council and the
African Commission on Human and Peoples’ Rights, Road Map, 17–18 January 2012, Addis Ababa, Ethiopia.
69
See Chapter 31 (Articles 45 and 46). 70
Held on 24 April 2018, Addis Ababa, Ethiopia.
71
See Chapter 6 (Article 5). 72
See Chapter 39 (Articles 63–68).
73
OAU Doc.CAB/LEG/24.9/49 (1990). See R. Murray, Human Rights in Africa: From the Organisation of
African Unity to the African Union, Cambridge University Press, chapter 6. F. Viljoen, ‘The African Charter on
the Rights and welfare of the Child’, in C. J. Davel (ed) Introduction to Child Law in South Africa, Juta, 2000,
at 214–231. R. Barsh, ‘The Draft Convention on the Rights of the Child: A case of Eurocentrism in standard
setting’, 58 Nordic Journal of International Law (1989) 24.

D. Elaboration of the African Human Rights System 11
Additional instruments add to the standards under the AU, among which are the
1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa;74
the African Youth Charter;75 a Charter for African Cultural Renaissance;76 the African
Charter on Values and Principles of Public Service and Administration, and another on the
Values and Principles of Decentralisation, Local Governance and Local Development;77
a Convention for the Protection and Assistance of Internally Displaced Persons adopted
in October 2009; a Convention on Preventing and Combating Corruption;78 and the
Convention on the Prevention and Combating of Terrorism.79 The African Commission
has been involved, as will be seen in Chapter 31 (Article 45), to a greater or lesser extent
in drafting the majority of these.
The AU’s African Charter on Democracy, Elections and Governance, a now central
plank of the AGA, was adopted in 2007 and addresses the range of factors such as par-
ticipation in governance, the rule of law, free and fair elections, separation of powers, and
the prohibition of unconstitutional changes of government.
As will be noted in Chapter 39 (Articles 63–68), the first additional protocol to the
ACHPR, the Protocol Establishing an African Court on Human and Peoples’ Rights, was
adopted in July 1998.80 Operational finally in 2004 it has added a further key institution
alongside that of the African Commission which has the capacity to interpret the African
Charter and with whom it should also collaborate. This relationship has not been without
tensions and whilst the Court has already passed its first decade, it has a relatively small
docket with only a handful of judgments having been adopted on the merits.
One of the reasons for this is the restrictions imposed by the Protocol’s Articles 5
and 34(6) on NGOs and individuals bringing cases directly to the African Court. A few
entrepreneurial lawyers and organisations have attempted to test the boundaries of these
provisions but with little success.81
The concerns that the Court would somehow undermine the African Commission, ei-
ther by diluting its protective mandate, or by questioning or disagreeing with its jurispru-
dence have so far not materialised. However, it is not at all clear that the African Court is
yet particularly well known. This may be due, in part, at least to the discussions that took
place after the Protocol came into force but which delayed the appointment of the bench
and the operationalisation of the Court. Article 5 of the Constitutive Act provided for an
African Court of Justice. At the time when the Protocol establishing the African Court
on Human and Peoples’ Rights received the required number of ratifications to come
into force, in 2004, this additional judicial body, the African Court of Justice (ACJ), was
not in existence. Recognising the financial and other challenges of having two judicial
continental bodies the AU decided to discuss the idea of merging the two Courts, and,
while these meetings were ongoing, to operationalise the African Court on Human and
Peoples’ Rights in the meantime. This Court therefore began functioning in 2007. As is
noted in Chapter 39 (Articles 63–68), an additional dimension came with the move to
incorporate into this merged court not only an international law and human and peoples’
rights jurisdiction, but also one to try international crimes in light, in part, of indictments
74
See Chapter 13 (Article 12). 75
Adopted 2 July 2006. 76
Adopted 24 January 2006.
77
Adopted 31 January 2011 and 27 June 2014 respectively. 78
Adopted 1 July 2003.
79
Adopted 1 July 2004.
80
OAU/LEG/AFCHPR/PROT (III), Assembly of Heads of State and Government of the OAU, 34th
Session, 8–10 June 1998.
81

12 1. Introduction
by the International Criminal Court of senior government officials. The result was an
instrument (‘the Malabo Protocol’) adopted in May 2014 which provides for an African
Court of Justice and Human and Peoples’ Rights.82 This has yet to come into force.
One of the consequences of these developments is that it may have impacted on the
ratification of the Protocol establishing the African Court of Human and Peoples’ Rights,
despite the valiant attempts by organisations such as the Coalition for an African Court
lobbying for its ratification.83
What is clear, however, is that despite the trajectory of this proposed Court, it is im-
portant that the current existing African Court on Human and Peoples’ Rights is con-
solidated and strengthened.84 This is particularly so in light of the possibility that it may
be merged into a Court with an extended jurisdiction and one which carries over some
of the staff, but will not bring with it any of the judges or the Registrar. The greater the
legacy the existing Court can leave the greater the likelihood that this will be integrated
and built upon by any new court.
E. Sub-regional Developments and the UN

In addition to these instruments, institutions and developments at the regional level, men-
tion must also be made of sub-regional initiatives.85 Organisations such as the Economic
Community of West African States (ECOWAS), Economic Community of Central
African States (ECCAS), the Southern African Development Community (SADC), the
East African Community (EAC), the Common Market for East and Southern Africa
(COMESA), the Community of Sahel- Saharan States (CEN- SAD) and the Arab
Maghreb Union (AMU) have in many cases human rights principles in their founding
treaties and have adopted additional documents elaborating on aspects of human and
peoples’ rights.86 Some of these have judicial organs which have the jurisdiction to pro-
nounce on human rights matters and can apply the ACHPR in doing so. Such initiatives
are clearly to be welcomed and offer further fora for individuals, civil society organisa-
tions and States to explore human rights issues not least because some of the courts have
less restrictive admissibility criteria. But they are not without their flaws87 and do raise
challenges if these instruments and findings of their bodies do not always correspond
with how the African Commission and African Court have interpreted the ACHPR and
with other documents adopted under the AU.88
82
83
See e.g. African Court Coalition Advocacy Mission on the margins of the 22nd AU Summit, Addis
Ababa, Ethiopia: 16 to 25 January 2014, 31 January 2014, see www.africancourtcoalition.org.
84
Note the Human Rights Strategy included among one of its indicators ‘four member states make a dec-
laration allowing individuals CSOs direct access to the Court’, Department of Political Affairs, African Union
Commission, Human Rights Strategy for Africa, 2012–2016, 3.2.
85
tinctiveness’, 18(2) South African Journal of International Affairs (2011) 191–216. For detailed discussion on
human rights and sub-regional organisations, see F. Viljoen, International Human Rights Law in Africa, Oxford
University Press, 2007, 480–526.
86
E.g. SADC Protocol on Gender and Development.
87
See L. Nathan, ‘The disbanding of the SADC Tribunal: A cautionary tale’, 35(4) HRQ (2013) 870–892; F
Cowell, ‘The death of the Southern African Development Community Tribunals’ Human Rights Jurisdiction’,
13(1) HRLR (2013) 153–165.
88
It is argued that the SADC Protocol ‘negates or weakens’ some of the provisions in the Maputo Protocol,
and that the ‘large majority of provisions of the SADC Gender Protocol are the exact replica of the Women’s

F. Conclusion and the Future of the ACHPR 13
F. Conclusion and the Future of the ACHPR

Celebrations at various points of decades of the existence of the ACHPR and African
Commission have enabled the African Commission to take stock.89 As the African human
rights system moves beyond its fourth decade there are a number of issues that are likely
to impact on its progress.
The AU Reform Agenda will introduce opportunities and challenges for the African
human rights system although which will dominate is yet to be seen. At least human
rights do appear to feature as an important element suggesting that they will not be for-
gotten in any process of change. The AU Assembly has called on the AU Commission
and ‘AU organs with a human rights mandate to strengthen the African system for the
promotion and protection of human and peoples’ rights’.90 Human rights are included
among the Agenda 2063 aspirations91 and ‘synergy among AU institutions on human
rights and RECs’ with a focus on ‘institutional strengthening’ is in the draft 2017–
2027 Human Rights Action and Implementation Plan.92 The creation of a Pan-African
Human Rights Institute (PAHRI) is an interesting development, the implications of
which for the existing African Commission and African Court are yet to be seen.93
Other aspects to Paul Kagame’s report of 2017 which are of relevance are the desire
to reduce dependence on funding coming from outside the AU,94 and the need for
identifying priority areas.95
However, the threats from the AU and States that have been directed to the inde-
pendence of the African Commission appear likely to be repeated, with, for instance,
the AU Assembly and Executive Council recently restating its ‘concern on the non-
implementation of Decision EX.CL/Dec.887(XXVII) of June 2015 on the withdrawal
of the observer status from the Coalition of African Lesbians (CAL) and requests the
ACHPR to comply with the Decision’.96 Signs that similar pressure may be placed on the
African Court are also apparent with a decision which, at the same Summit, in strong
wording ‘directs the Court to develop and submit a policy on dealing with Partners
in documented, transparent, accountable and verifiable ways that Member States are
Protocol’ resulting in a ‘duplication with some minor exceptions’, and omission of others’, M. Forere and L.
Stone, ‘The SADC Protocol on Gender and Development: Duplication or complementarity of the African
Union Protocol on Women’s Rights?’, 9 AHLRJ (2009) 434–458, at 439 and 454.
89
See e.g. Opening Speech by the Chairperson of the African Commission on Human and Peoples’ Rights,
Her Excellency Honourable Commissioner Catherine Dupe Atoki Delivered at the Opening Ceremony of
the 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, Yamoussoukro, Côte
d’Ivoire. See also 61st Ordinary Session, Final Communiqué of the 61st Ordinary Session of the African
Commission on Human and Peoples’ Rights, Banjul, The Gambia, 1–15 November 2017.
90
Declaration by the Assembly on the Theme of the Year 2016, Assembly/AU/Decl.1 (XXVII) Rev.1,
para 11.
91
Agenda 2063. The Vision for 2063.
92
Updates on AU Development of the African Ten-Year Action Plan on Human and Peoples’ Rights: 21
October 2017, AU Commission. M. K. Mbondenyi, ‘Invigorating the African System on Human and Peoples’
Rights through institutional mainstreaming and rationalisation’, 27 NQHR (2009) 451–484.
93
Declaration by the Assembly on the Theme of the Year 2016, Assembly/AU/Decl.1 (XXVII) Rev.1,
para 16.
94
H. E. Paul Kagame, The Imperative to Strengthen our Union. Report on the Proposed Recommendations
for the Institutional Reform of the African Union, 29 January 2017, pp.6 and 24 respectively.
95
Ibid, pp.6 and 12.
96
Decision On The African Commission On Human And Peoples’ Rights, EX.CL/Dec.995(XXXII),
January 2018, para 3. See further Chapter 29 (Articles 30-40).

14 1. Introduction
confident do not interfere with the Court’s independence and impartiality, for consider-
ation and approval by the Policy Organs by the June/July 2018 Summit’.97
In this time of some uncertainty, it is still crucial that the existing African human rights
organs, in particular the African Commission and the African Court under the ACHPR
consolidate their mandates. Strong institutions are more likely to influence their own
future and their place within any changing architecture at the AU level as their ideas are
less able to be dismissed out of hand. In order to achieve this, the following should be
borne in mind.98
A treaty body such as the African Commission that operates independently and with
expertise and integrity will enhance its legitimacy and credibility among not only States
but also other treaty bodies, the international and regional community, civil society and
others. By drawing on its expertise it will also help counteract criticism particularly where
the issues are controversial. As it has faced, and will mostly likely continue to face, pres-
sure to react in certain ways from a range of quarters, with attempts by the political bodies
of the AU to interfere in its decision-making, so it is crucial that it have, in the words of
a former Chair of the Commission, ‘moral courage’99 to stand firm and apply the provi-
sions of the ACHPR which it was set up to monitor.
Furthermore, as this Commentary aims to illustrate, the African Commission and
African Court have provided in many cases a deep and powerful analysis of many provi-
sions of the ACHPR. It is imperative this work is not forgotten. It is important that the
African Commission and African Court draw upon the rich tapestry of their own efforts,
going back the thirty years of the African Commission, when crafting new resolutions,
decisions on communications and other documents. Although some of the earlier deci-
sions may have consisted of only a couple of sentences, many of them and the African
Commission’s other findings set out important standards which are still relevant today.
The African Commission and stakeholders who engage with it should ensure the institu-
tional legacy of the African Commission’s work is upheld by drawing upon its previous
resolutions, decisions and documents when considering the development of new stand-
ards. There is an excitement in the new. But consolidation is also essential. The African
Commission’s jurisprudence and standards that it has painstakingly developed with others
over the years need to be remembered and integrated into the present and future work.
Attending the African Commission’s sessions, one is struck by their very open na-
ture, the flexibility which they offer those to engage with it whether this is through its
sessions or its procedures. This is one of its key strengths. The preparedness of the African
Commission to draw upon offers of assistance and support and to be amenable to initia-
tives has enabled it to develop special mechanisms on particular topics; to hold sessions in
different African States thereby enabling local actors and communities to attend; to give
a very broad interpretation to locus standi in its communication procedure; and is also
reflective in the number of civil society organisations (CSOs) and national human rights
institutions (NHRIs) that have observer and affiliate status with it.
97
Decision On The 2017 Activity Report Of The African Court On Human And Peoples’ Rights, EX.CL/
Dec.994(XXXII), Rev.1.
98
R. Murray, Presentation to 61st Ordinary Session of the African Commission on Human and Peoples’
Rights, Banjul, The Gambia, November 2017, on file with author.
99
U. O. Umozurike, ‘The African Charter on Human and Peoples’ Rights: Suggestions for more effective-
ness’, 13(1) Annual Survey of International and Comparative Law (2007) 179–19, at 188.

F. Conclusion and the Future of the ACHPR 15
This open and inclusive approach to the diverse range of organisations, individuals,
citizens as well as other representatives has in the past, and continues to be, threatened.100
Restricting this space would be a huge loss to the vibrancy of the African Commission’s
operations and would deprive it of a great source of not only information on human
rights violations, but also initiatives for intelligent solutions to the problems facing the
continent.
Furthermore, as Navanethem Pillay has noted, what is important is the accuracy, rele-
vance and quality of the treaty body findings.101 A treaty body which is precise and ac-
curate in its approach and in the application of its own rules and procedures is more
likely to be considered credible and taken seriously by all actors, States and others. This
precision is perhaps nowhere more important than in the communication procedure,
which inevitably by its very nature is going to be the area of its work which may be most
contested. Therefore, it is crucial that the Rules of Procedure are adhered to by all parties
and also the Commission itself. As noted in Chapter 33 (Articles 55 and 57) delays in the
processing of communications are common. Further, while the detail and complexity of
reasoning provided in its decisions has increased, the richness of the jurisprudence of the
Commission is not always brought consistently into decisions on communications, either
because previous relevant documents are not mentioned at all or the wording taken from
these previous resolutions and other decisions, for example, is not followed precisely. As
highlighted in various of these chapters in this Commentary this results in a lack of clarity
as to what rules or standards the African Commission may be applying.
Lastly, it is indisputable that the African human rights system has come far. However,
the depth and breadth of what it has done and continues to do is not often known.
Everything the African Commission and African Court do cannot, nor indeed should,
be visible or made public. Some private deliberations are necessary for the ‘delicate rela-
tionship’ that the African Commission must tread with various stakeholders and the rules
the Court must adhere to as a judicial body. However, there are many documents that
the African Commission has confirmed should be public which are not dependably or
always available. These include Concluding Observations on all Article 62 State reports,
the publication of decisions on communications immediately after their adoption by the
AU Assembly, and mission reports. Further, not all documents are available in all AU
languages and on its website. If these matters can be addressed this will go some way to
ensuring that the true extent of what the African human rights system has achieved and
could achieve is more visible.
100
101
Strengthening the United Nations human rights treaty body system. A Report by the United Nations
High Commissioner for Human Rights Navanethem Pillay, June 2012, at p.8.

2. Article 1
Obligations of Member States
The Member States of the Organisation of enshrined in the Charter and shall undertake
African Unity, parties to the present Charter to adopt legislative or other measures to give
shall recognise the rights, duties and freedoms effect to them.
A. Introduction
Article 1 has at the same time an impressive breadth of coverage, encompassing State ob-
ligations, jurisdiction, provisional measures and remedies, yet is also a provision whose
potential is often not fully explored or developed with sufficient depth or consistency. In
various resolutions relating to particular States, the African Commission has used Article
1 as a reminder to them of their obligations under the African Charter on Human and
Peoples’ Rights (ACHPR) and as a ‘catch-all’ to address human rights violations whether
they be a range of violations,1 or against specified individuals.2 For example, noting the
‘harsh’ sentencing by a court in Egypt of 23 individuals to ‘three years’ imprisonment,
a further three years’ of police monitoring and a fine of more than 10,000 Egyptian
Pounds for participating in a demonstration on 21 June 2014’, the Special Rapporteurs
on Human Rights Defenders, Freedom of Expression and the UN Special Rapporteur
on the situation of Human Rights Defenders raised their concerns with the ‘failure of
the Arab Republic of Egypt to adopt appropriate measures to comply with international
standards and regional instruments, as laid down in Article 1’.3
The African Commission also appears to use this provision to then call on States to
adopt certain measures to address the violations, including guaranteeing freedom of ex-
pression and assembly; ending violence;4 adopting laws on police reform and implemen-
tation of the Robben Island Guidelines;5 to free individuals held without trial;6 allow
independent monitors to access detainees;7 ensure the investigation of acts by non-State
1
Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012; Resolution on
the Human Rights Situation in Federal Republic of Nigeria, ACHPR/Res.214, 2 May 2012; Resolution on the
Human Rights Situation in the Democratic Republic of Ethiopia, ACHPR/Res.218, 2 May 2012; Resolution
on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14 March 2014.
2
E.g. in letters of appeal, such as that sent to the President of Senegal on 22 June 2009 by the Special
Rapporteur on Freedom of Expression, to bring laws in line with the ACHPR standards and decriminalise
press offences, Press Release by the Special Rapporteur on Freedom of Expression and Access to Information
in Africa on the continuous violation of Freedom of Expression in the Republic of Senegal, 15 October 2009.
See also Press Release on the Harassment of Mr. Jean-Paul Noël Abdi, 16 March 2007.
3
Joint Press Release on the Verdict against Sanaa Seif, Yara Sallam and 21 Other Co-accused in Egypt, 4
November 2014.
4
Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012.
5
Resolution on Police Reform, Accountability and Civilian Police Oversight in Africa, ACHPR/Res.103a,
29 November 2006.
6
Resolution on the Human Rights Situation in Eritrea, ACHPR/Res.91, 5 December 2005.
7
Resolution on the Human Rights Situation in the Democratic Republic of Ethiopia, ACHPR/Res.218,
2 May 2012.

B. Ratification of the ACHPR and Relationship of the Charter 17
entities8 and withdraw charges against a human rights lawyer who had been charged with
making statements contrary to the Swaziland Sedition and Subversive Activities Act; and
to make amendments to the legislation.9
B. Ratification of the ACHPR and Relationship of

the Charter with National Law
The presumption is that by ratification of the ACHPR, the State would have already
brought tits domestic law into conformity with the Charter:10 ‘when a State ratifies
the African Charter it is obligated to uphold the fundamental human rights contained
therein’.11 Therefore legislation that existed prior to ratification of the ACHPR that is
subsequently found to have been contrary to the provisions of the Charter will result in
the State being found in violation of Article 1:
the respondent State had an obligation to ensure that the Proclamation conforms to the [African]
Charter when it ratified the latter in 1995. By ratifying the [African] Charter without taking ap-
propriate steps to bring its laws in line with the same, the African Commission is of the opinion
that the State has not complied with its obligations under Article 1.12
It has based this argument also on the principle of pacta sunt servanda. As was noted in
one communication against Mauritania:
The entry into force of the Charter in Mauritania created for that country an obligation of conse-
quence, deriving from the customary principle pact sunt servanda. It consequently has the duty to
adjust its legislation to harmonise it with its international obligations.13
Ratification is thus the start of a process, according to the African Commission.14

There numerous opportunities for the African Commission to comment on the
monist/dualist nature of States’ legal systems and the nature of their obligations under
the ACHPR. It has been recognised that ‘the reception of international law is not uni-
form in all States Parties’,15 but has still called on States, through the Assembly of Heads
of States and Government of the then Organisation of African Unity (OAU), to ‘intro-
duce the provisions of Articles 1 to 29 of the African Charter on Human and Peoples’
Rights in their Constitutions, laws, rules and regulations and other acts relating to
human and peoples’ rights’.16 In monist States, one may presume that this would be
8
Resolution on the Human Rights Situation in the Federal Republic of Nigeria, ACHPR/Res.267, 14
March 2014.
9
Act No. 46 of 1938, amended, see Activity Report of the Special Rapporteur on Freedom of Expression and
Access to Information in Africa by Adv. Pansy Tlakula, Presented to the 46th Ordinary Session of the African
Commission on Human and Peoples’ Rights, 11–25 November 2009, Banjul, The Gambia, paras 67–69.
10
Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, paras 47–48.
11
Communication 241/01, Purohit and Moore v Gambia (The), 29 May 2003, para 43.
12
Communication 251/02, Lawyers of Human Rights v Swaziland, 2 July 2005, para 91.
13
Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98, Malawi Africa Association, Amnesty
International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et
ayants-Droit, Association mauritanienne des droits de l’Homme v Mauritania, 11 May 2000, para 84.
14
Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon,
25 November 2009, para 108.
15
Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights
into National Laws of States, ACHPR/Res.3, 14 April 1989.
16
Resolution on the Integration of the Provisions of the African Charter on Human and Peoples’ Rights
into National Laws of States, ACHPR/Res.3, 14 April 1989.

18 2. Article 1: Obligations of Member States
automatic. However, as Viljoen notes, ‘the monist tradition promises more than it de-
livers . . . Almost without fail, African “monist” States have not adopted the required
enactments’.17 Even with recognition in the constitution, as is the case with the 2010
Kenyan Constitution,18 what is necessary is that the international instruments are not
just recognised at the domestic level but also that they are enforced through their use
and interpretation by the courts and lawyers.19 The extent to which this occurs, whether
States are ‘monist’ or ‘dualist’, correlates, as Viljoen explains, ‘with the status that the
Charter (as part of international law) enjoys in that domestic legal system’.20 There are
thus some examples of affirmation of the superior status of instruments such as the
ACHPR over national legislation,21 but equally ‘judicial practice stands at odds with
the international law-friendly constitutional framework. Direct applicability of inter-
national law in domestic courts in civil law countries is in practice avoided by the courts
though sometimes invoked by counsel.’22
Further, going beyond the treaty itself, as Killander and Adjolohoun note in 2010,
‘there have been no reported cases of reliance on the findings of the African Commission
or human rights treaty bodies in the case law of Anglophone countries’.23
For ‘dualist’ States, the African Commission has made clear that even where the
ACHPR has been incorporated into domestic law if the State subsequently revokes the
domestic effect of the ACHPR it will not affect its international obligations:
The African Commission has to express its approval of Nigeria’s original incorporation of the
Charter, an incorporation that should set a standard for all Africa, and its sadness at the subse-
quent nullification of this incorporation. The Commission must emphasise, however, that the ob-
ligation of the Nigerian government to guarantee the right to be heard to its citizens still remains,
unaffected by the purported revocation of domestic effect of the Charter. The Charter remains in
force in Nigeria, and notwithstanding the Political Parties Dissolution Decree, the Nigerian gov-
ernment has the same obligations under the Charter as if it had never revoked. These obligations
include guaranteeing the right to be heard.24
17
F. Viljoen, International Human Rights Law in Africa, p.533. See generally, L. G. Franceschi, The African
Human Rights Judicial System. Streamlining Structures and Domestication Mechanisms View from the Foreign
Affairs Power Perspective, Cambridge Scholars Publishing, 2014.
18
Article 2(6) of the Kenyan Constitution reads: ‘Any treaty or convention ratified by Kenya shall form part
of the law of Kenya under this Constitution’.
19
N. W. Orago, ‘The 2010 Kenyan Constitution and the hierarchical place of international law in the
Kenyan domestic legal system: A comparative perspective’, 13 AHRLJ (2013) 415–440, at 438; and for dis-
cussion of awareness of international law in, for example, Uganda, see B. Kabumba, ‘The application of inter-
national law in the Ugandan judicial system: A critical enquiry’, in M. Killander (ed), International Law and
Domestic Human Rights Litigation in Africa, Pretoria University Law Press, 2010, 83–107, at 106: ‘while judges
in Uganda have not been entirely comfortable dealing with questions of international law that arise before
them, there are signs that the courts are increasingly willing to engage with the question of the interaction be-
tween international law and the national legal system’.
20
F. Viljoen, ‘Application of the African Charter on human and peoples’ rights by domestic courts in Africa’,
43 JAL (1999) 1–17, at 15.
21
E.g. in Fawehinmi v Abacha (1996) 9 NWLR (Pt.475) 710, before the Nigerian Court of Appeal.
22
M. Killander and H. Adjolohoun, ‘International law and domestic human rights litigation in Africa: An
introduction’, in M. Killander (ed), International Law and Domestic Human Rights Litigation in Africa, Pretoria
University Law Press, 2010, 3–24, at 6–7.
23
M. Killander and H. Adjolohoun, ‘International law and domestic human rights litigation in Africa: An
introduction’, in M. Killander (ed), International Law and Domestic Human Rights Litigation in Africa, Pretoria
University Law Press, 2010, 3–24, at 6–7.
24
Communication 129/94, Civil Liberties Organisation v Nigeria, 22 March 1995, para 20.

C. ‘Adopt Legislative or Other Measures’ 19
Further, ‘international treaties which are not part of domestic law and which may not be
directly enforceable in the national courts, nonetheless impose obligations on State Parties’.25
In a communication against The Gambia, the Respondent State argued that most of
the rights in the ACHPR were protected in the Constitution. When the constitution was
suspended, the African Commission noted that the enjoyment of the rights and ‘by im-
plication’ those in the ACHPR had therefore been restricted, but that:
the suspension of the Bill of Rights does not ipso facto mean the suspension of the domestic effect
of the Charter . . . The suspension of the Bill of Rights and consequently the application of the
Charter was not only a violation of Article 1 but also a restriction on the enjoyment of the rights
and freedoms enshrined in the Charter.26
Where the Botswanan State claimed that the ACHPR did not have the force of law in the
State due to its dualist nature, the African Commission disagreed. It noted that whether a
State was monist or dualist ‘cannot be used as an excuse for not complying with its treaty
obligations’.27
Further, it cited ‘the current thinking . . . that both international customary law and treaty
law can be applied by state Courts where there is no conflict with existing state law, even in the
absence of implementing legislation’, in line with the Bangalore Principles on the Domestic
Application of International Human Rights Norms, and the rule that State cannot use its
domestic law as an excuse not to comply with its international obligations.28 Concluding,
it held that while it had ‘no power to rule on the Constitutionality or otherwise of the laws,
executive actions or judicial decisions of States Parties and thus is not going to make any pro-
nouncement on the constitutionality of the provisions of the Botswana Immigration Act or
any of the actions of the authorities’, it was prepared to hold violations of the ACHPR and
to call on Botswana to ensure that its legislative provisions and practices ‘conform to inter-
national human rights standards, in particular, the African Charter’.29
C. ‘Adopt Legislative or Other Measures’

1. Legislative Measures
Although the final draft of the ACHPR was criticised for failing to include the terms
‘guarantee’ and ensure’ found in the earlier Dakar and M’Baye Drafts respectively,30
the African Commission has used such terms when clarifying State obligations under
Article 1.31 In addition, it envisages that Article 1 requires that the provisions of the
ACHPR be protected in the constitution, an approach also adopted by States.32
25
Communication 211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 60.
26
Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The), 11 May 2000.
27
Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010. See also Communication
211/98, Legal Resources Foundation v Zambia, 7 May 2001, para 59.
28
Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, paras 237–238.
29
Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, paras 242 and 244
respectively.
30
Article 1 of each of the Drafts. See N. J. Udombana, ‘Between Promise and Performance: Revisiting
States’ Obligations Under the African Human Rights Charter’, 40 Stan. J. Int’l L. (2004) 105–142, at 126.
31
E.g. Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 97.
32
E.g. the State report of Uganda sees the implementation of Article 1 as protection in the constitution,
see The Republic of Uganda Periodic Report by the Government of Uganda to the African Commission
on Human and Peoples’ Rights Presented at the 49th Ordinary Session Banjul, The Gambia, 28 April–12
May 2011.

More frequently, however, is reference to the requirement that the rights in the
ACHPR be provided for in national laws.33 This thus also necessitates the amendments
to any legislation which is contrary to the ACHPR. For example, the Special Rapporteur
on Freedom of Expression welcomed information in March 2009 that the government of
Senegal had announced plans to ‘amend existing media legislation so as to decriminalise
press offences’, which ‘if implemented, such amendment would be a laudable step to-
wards the fulfilment of Article 1 of the African Charter’.34 There is thus the presumption
that ratification will require States to ensure the ‘harmonization’ of national laws with the
ACHPR.35
Reference has also been made to an ‘adequate legislative framework’. Where complain-
ants in one case argued that the legislation in Sudan failed to protect against arbitrary
arrest, did not give sufficient safeguards against torture, did not provide for a right of
access to a lawyer or to a doctor, nor remedies in the event of violations, the African
Commission found that the legislative framework was not adequate.36
Citing Article 1 when adopting the Model Law for African States on Access to
Information, the African Commission noted that in so doing it had provided ‘detailed and
practical content to the legislative obligations of Member States to the African Charter with
respect to the right of access to information, while leaving the specific form in which such
laws will be adopted to individual States Parties. Ultimately, each State Party must deter-
mine the nature and scope of adjustments that may be required to the content of this Model
Law based on the provisions of its Constitution and the structure of its own legal system’.37
2. ‘Other’ Measures
While ‘legislative measures’ may be more obvious, ‘other measures’ is less so. The African
Commission has taken an expansive approach here, interpreting this as providing States
with ‘a wide choice of measures to use to deal with human rights problems’.38 In a par-
ticular communication, it noted that this could have entailed a reinstatement of the con-
stitution or amending the offending decree.39
Beyond national laws, Article 1 can include the requirement to ratify international and
regional treaties. There have been numerous occasions where the African Commission has
called upon States, under Article 1, to adopt as well as implement these instruments.40
In one instance in the context of Article 1 it has referred to ‘legislative and material
measures’,41 although the specific requirement that the State ‘provide the required human
33
States have also interpreted this similarly, see Libya: 1st Periodic Report, 1986–1991, 1 January 1992,
para 7. See in general N. J. Udombana, ‘Between promise and performance: Revisiting states’ obligations under
the African Human Rights Charter’, 40 Stan. J. Int’l L. (2004) 105–142.
34
Press Release by the Special Rapporteur on Freedom of Expression and Access to Information in Africa
on the Proposed Decriminalisation of Media Offences in Senegal, 16 June 2009.
35
Communication 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (repre-
sented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, 2 May 2012, para 142.
36
Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para 92.
37
Model Law for African States on Access to Information, preface.
38
39
40
E.g. Resolution on the Drafting of Guidelines on Human Rights and the fight against Terrorism,
ACHPR/Res.274, 12 May 2014.
41
My italics, Resolution on the General Human Rights Situation in Africa, ACHPR/ Res.207, 5
November 2011.

D. Violation of Other Rights Results in Violation of Article 1 21
resources to put an end, as soon as possible, to the practice of impunity’ does not assist in
clarifying what ‘material’ may mean in this context.
It is not just legislation that States should adopt to implement the rights in the ACHPR
but also ‘administrative, judicial measures’;42 regulations and policies, such as those around
torture prevention and policing;43 training of officials;44 and ‘policy and budgetary measures,
education and public awareness measures and administrative action as well as ensuring appro-
priate administrative and judicial remedies for the violation of these rights’.45 Furthermore,
‘other measures’ may also be interpreted to include the establishment of institutions:
The practical implementation of these legal instruments through the State Institutions endowed
with creditor, material and human resources, is also of considerable importance. It is not enough to
make do with taking measures, these measures should also be accompanied with institutions that
produce tangible results.46
D. Violation of Other Rights Results in Violation of Article 1

A violation of ‘any provision of the Charter’,47 ‘automatically means a violation of Article
1’48 and the ‘liability’ in Article 1 ‘is automatically invoked as soon as a violation of a right
protected by the Charter is deemed to have occurred’.49 By holding that Article 1 obliga-
tions ‘can be activated only when a substantive right of the Charter has been violated’50
42
Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 7 May
2015, Part 14.A.
43
29 November 2006.
44
For example, in principles and guidelines on terrorism, see Principles and Guidelines on Human and
Peoples’ Rights while Countering Terrorism in Africa, 7 May 2015, Part 14.C.
45
Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human
and Peoples’ Rights, para 2.
46
47
Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December
2011, para 272. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November
2013, para 91. Communication 284/03, Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe v Zimbabwe, 3 April 2009, para 182. Communication 292/04, Institute for Human Rights and
Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola, 22 May 2008, para 82.
48
Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt, 16 December
2011, para 272. Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November
2013, para 91; Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by
FIDH and OMCT) v Sudan, 14 March 2014, para 140. Communication 301/05, Haregewoin Gebre-Sellaise
& IHRDA (on behalf of former Dergue officials) v Ethiopia, 7 November 2011, para 176. The Matter of Thobias
Mang’ara Mango and Shukurani Masegenya Mango v The United Republic of Tanzania, App.No.005/2015,
Judgment of 11 May 2018, paras 149–150.
49
Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 187.
Communication 317/06, The Nubian Community in Kenya v The Republic of Kenya, 28 February 2015, paras
169–170. See also Communication 373/06, INTERIGHTS, Institute for Human Rights and Development
in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 46;
Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 97. Communication 286/
2004, Dino Noca v Democratic Republic of the Congo, para 155.
50
Communication 318/06, Open Society Justice Initiative v Côte d’Ivoire, 28 February 2015, para 92. See
also Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and
Evictions (COHRE) v Sudan, 27 May 2009, para 227; Communication 373/06, INTERIGHTS, Institute for
Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme v Mauritania,
3 March 2010, para 46.

presumes that the ‘any provision’ referred to is in fact any of the rights in Articles 2–24.
In one case the African Commission found that Republic of Botswana by using hanging
as a method of execution and not providing the family of the victim with an opportunity
to meet with him prior to the sentence being carried out, had not only violated Article 5
of the ACHPR but also Article 1.51
The African Commission has not, on every occasion, cited Article 1 where violations
have been found and it is not always apparent why this is the case. Where it found that
its previous decision in Communication 242/2001 Interights, Institute for Human Rights
and Development in Africa, and Association Mauritanienne des Droits de l’Homme/Islamic
Republic of Mauritania was infra petita as it had failed to pronounce on all the allegations
of the complainants, including Article 1, it then held that ‘any finding of violation of
those rights constitutes a violation of Article 1’.52 It went further in one communication
to conclude that ‘[i]‌t is accordingly unnecessary to consider violation of Article 1 of the
Charter independent of the rights or freedoms, if at all, where alleged violation of such
rights or freedoms is also due to be considered’.53
Conversely, it can sometimes be difficult to see precisely what adding Article 1 to the
list of those rights violated actually achieves. Furthermore, the African Commission has
also found a violation of Article 1, among a list of other rights, where the decision does
not list it among the provisions of the ACHPR alleged to have been violated, and where
the decision does not provide any reasoning for a finding of a violation.54 A similar ap-
proach has been adopted by the African Court in some judgments.55
Equally, it is not possible to have a violation of Article 1 without a violation of any
of the substantive rights in the ACHPR: ‘any allegation of violation of this Article must
be supported with evidence for disregard of another substantive right guaranteed by the
Charter’.56 This appears to be pertinent in communications, and is also supported by
the practice to cite Article 1 along with other rights when adopting press releases and
statements concerning alleged violations of the ACHPR in specific African States. The
contexts have varied, but have included, for example, harassment of human rights de-
fenders in Guinea, Sudan and Zimbabwe and other States.57 In all these situations it has
51
Communication 319/06, Interights & Ditshwanelo v The Republic of Botswana, para 97.
52
Communication 373/09, INTERIGHTS, Institute for Human Rights and Development in Africa, and
Association Mauritanienne des Droits de l’Homme v Mauritania, 3 March 2010, para 42.
53
Communication 355/07, Hossam Ezzat and Rania Enayet (represented by Egyptian Initiative for Personal
Rights and INTERIGHTS) v The Arab Republic of Egypt, 28 April 2018, para 127.
54
E.g. in Communication 102/93, Constitutional Rights Project v Nigeria, 31 October 1998, the decision
notes that the complainant alleged violations of Articles 6 and 13, but violations were found of these articles
as well as Article 1 (and Article 9). See also Communication 294/04, Zimbabwe Lawyers for Human Rights and
Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe, 3
April 2009.
55
See e.g. Amiri Ramadhani v United Republic of Tanzania, App. No. 010/2015, Judgment, 11 May 2018,
paras 75–78; and Alex Thomas v United Republic of Tanzania, App. No. 05/2013, 20 November 2015, para
135: ‘[W]‌hen the Court finds that any of the rights, duties and freedoms set out in the Charter are curtailed,
violated or not being achieved, this necessarily means that the obligation set out under Article 1 of the Charter
has not been complied with and has been violated’.
56
Communication 259/02, Working Group on Strategic Legal Cases v Democratic Republic of Congo, 24 July
2011, paras 62 and 85.
57
Press Release on the Situation in Guinea, 23 January 2007; Press Release on the Detention of Mr.
Benjamin Luanda Mitsindo, 13 March 2007; Press Release on the Situation in Zimbabwe, 18 July 2007; Press
Release on the assassination attempt on Mr. Pierre-Claver Mbonimpa, 5 August 2015; Assassination of human
rights defender, Floribert Bwana Chuy Bin Kositi, 16 July 2007; Press Release: Assassination of the journalist
and human rights defender Serge Maheshe, 22 June 2007.

F. State Obligations 23
reminded the State of its obligations under the ACHPR, with Article 1 being cited with
one or more other rights.
E. Binding Nature of the ACHPR

It has been stated on numerous occasions by the African Commission that Article 1 ren-
ders the ACHPR with a legally binding character.58
In one communication the government of Botswana claimed that it was not bound
by the ACHPR on the basis that those drafting the Charter did not intend for it to be
binding, and the Charter had no force of law at the national level, it not having been
incorporated by legislation. The African Commission noted clearly that it is the process
of ratification which then establishes the binding nature of the ACHPR and imposes the
obligations on the State to respect, protect, promote and fulfil its provisions:
During ratification, if its intention was not to be bound by the Charter as a whole then it should
have refrained from ratifying the Charter or it should have withdrawn following the proper pro-
cedures. Or if it wanted not to be bound by certain provisions of the Charter it should have
formally made its reservations during ratification. But in the absence of any of these the legal pre-
sumption is that it is bound by the Charter and hence is expected to comply with the provisions
of the same.59
This approach has been reaffirmed in other decisions.60
F. State Obligations
The African Commission has adopted the approach of the UN and other regional and na-
tional bodies that States owe obligations under the ACHPR to ‘respect, protect, promote
or fulfil’ the rights,61 adding ‘promote’ to the usual format found in other international
human rights law obligations, although not on every occasion.62 It has used these terms
on a relatively consistent basis, although on occasion also referred to the obligation to
‘ensure’ instead of an obligation to protect, noting that this requires States ‘to take the
requisite steps, in accordance with its constitutional process and the provisions of rele-
vant treaty (in this case the African Charter), to adopt such legislative or other measures
which are necessary to give effect to these rights’.63 It has also mentioned obligations to
58
Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25
November 2009, para 87. Communication 323/06, Egyptian Initiative for Personal Rights & INTERIGHTS v
Egypt, 16 December 2011, para 272. Communication 147/95-149/96, Sir Dawda K. Jawara v Gambia (The),
11 May 2000, para 46.
59
Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 231.
60
Communication 137/94-139/94-154/96-161/97, International PEN, Constitutional Rights Project, Civil
Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v Nigeria, 31 October 1998, para 116.
61
Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013, para
92. Communication 379/09, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and
OMCT) v Sudan, 14 March 2014, para 141. Communication 317/06, The Nubian Community in Kenya v
The Republic of Kenya, 28 February 2015, paras 169–170. See also Communication 373/06, INTERIGHTS,
Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l’Homme
v Mauritania, 3 March 2010, para 46. Communication 245/02, Zimbabwe Human Rights NGO Forum v
Zimbabwe, 15 May 2006, para 150.
62
Communication 313/05, Kenneth Good v Republic of Botswana, 26 May 2010, para 231.
63
Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, para 171.

‘prevent’,64 to investigate and to provide a remedy. A failure to comply with any of these
obligations will result in a violation of Article 1.65
These obligations apply equally, there is no hierarchy among them,66 and to all rights in
the ACHPR,67 although, as will be noted below, the African Commission has made further
comments on economic, social and cultural rights.
1. To Respect
At various points, for instance in 2012 where it urged parties in Senegal to ‘put an imme-
diate end to the violence’,68 the African Commission has called on States to stop carrying
out certain activities, even if it does not expressly use the term ‘respect’. Where it has re-
ferred to an obligation to ‘respect’, its approach follows that of other international bodies,
requiring that States ‘refrain from interfering directly or indirectly with the enjoyment’
of rights,69 and noting that this is a ‘negative’ obligation.70 A State therefore ‘complies
with the obligation to respect the recognised rights by not violating them’71 and ‘should
respect right-holders, their freedoms, autonomy, resources, and liberty of their action’.72
For example, States Parties are required to take measures to ensure that their police force
‘respects the dignity inherent in the individual during the discharge of their duties in the
maintenance of law and order’.73 Where individuals in Sudan were denied the right of
habeas corpus and not brought before a court until a year after their arrest, in addition to
finding a violation of Articles 6 and 7, the African Commission also held that the State,
under Article 1, had ‘failed to respect their right to liberty as well as their right to a fair
trial’.74
In addition, States are also required to ‘take positive measures to ensure that all
branches of government (legislative, executive and judicial) at all levels (national, regional
and local), as well as all organs of state, do not violate’ rights.75
64
and Peoples’ Rights, para 16. Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para
158. Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25
November 2009, para 89.
65
Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013,
para 92.
66
and Peoples’ Rights.
67
and Peoples’ Rights; Communication 286/2004, Dino Noca v Democratic Republic of the Congo, para 156.
68
Resolution on the Human Rights Situation in Senegal, ACHPR/Res.208, 1 March 2012.
69
and Peoples’ Rights, para 5. Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15
May 2006, para 152.
70
71
Communication 272/03, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, 25
November 2009, para 88.
72
73
29 November 2006.
74
Communication 368/09, Abdel Hadi, Ali Radi & Others v Republic of Sudan, 5 November 2013,
para 92.
75
and Peoples’ Rights, para 6.

Another random document with
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human foot and distinguish it from the human hand. In fact, Mr.
McCann’s own photographs of the gorilla skeleton show these
features quite distinctly, though he himself, for some reason or other,
fails to speak of them. It is to be feared, however, that his
adversaries may not take a charitable view of his reticence
concerning the simian heel, but may be inclined to characterize his
silence as “discreet,” all the more so, that he himself has
uncomplimentarily credited them with similar discretions in their
treatment of unmanageable facts. In short, Mr. McCann’s case
against homology resembles the Homeric hero, Achilles, in being
vulnerable at the “heel.” At all events, the homology itself is an
undeniable fact, and it is vain to tilt against this fact in the name of
adaptational adjustments like “opposability” and “non-opposability.”
Since, therefore, our author has failed to prove that this feature is too
radical to be classed as an adaptive modification, our only hope of
exempting the human skeleton from the application of the argument
in question is to show that argument itself is inconsequential.
Mr. McCann’s predicament resembles that of the unlucky
disputant, who having allowed a questionable major to pass
unchallenged, strives to retrieve his mistake by picking flaws in a
flawless minor. As Dwight has well said of the human body, “it differs
in degree only from that of apes and monkeys,” and “if we compare
the individual bones with those of apes we cannot fail to see the
correspondence.” (“Thoughts of a Catholic Anatomist,” p. 149.) In
short, there exists no valid anatomical consideration whatever to
justify us in subtracting the human frame from the extension of the
general conclusion deduced from homology. Whosoever, therefore,
sees in the homology of organic forms conclusive evidence of
descent from a common ancestor, cannot, without grave
inconsistency, reject the doctrine of the bestial origin of man. He may
still, it is true, exclude the human mind or soul from the evolutionary
account of origins, but, if homology is, in any sense, a sound
argument for common descent, the evolutionary origin of the human
body is a foregone conclusion, and none of the anatomical
“differences in degree” will avail to spare us the humiliation of
sharing with the ape a common family-tree. It remains for us, then, to
reëxamine the argument critically for the purpose of determining as
precisely as possible its adequacy as a genuine demonstration.
To begin with, it must be frankly acknowledged that here the
theory of transformism is, to all appearances, upon very strong
ground. Its first strategic advantage over the theory of immutability
consists in the fact that, unlike the latter, its attitude towards the
problem is positive and not negative. When challenged to explain the
structural uniformities observed in organic Nature, the theory of
immutability is mute, because it knows of no second causes or
natural agencies adequate to account for the facts. It can only
account for homology by ascribing the phenomenon exclusively to
the unity of the First Cause, and, while this may, of course, be the
true and sole explanation, to assume it is tantamount to removing
the problem altogether from the province of natural science. Hence it
is not to be wondered at that scientists prefer the theory of
transformism, which by assigning intermediate causes between the
First Cause and the ultimate effects, vindicates the problem of
organic origins for natural science, in assuming the phenomena to
be proximately explicable by means of natural agencies. Asked
whether he believes that God created the now exclusively arboreal
Sloth (Bradypus) in a tree, the most uncompromising defender of
fixism will hesitate to reply in the affirmative. Yet, in this case, what is
nowadays, at least, an inherited preadaptation, dedicates the animal
irrevocably to tree-life, and makes its survival upon the ground
impossible.
Analogous preadaptations occur in conjunction with the
phenomena of parasitism, symbiosis and commensalism, all of
which offer instances of otherwise disparate and unrelated
organisms that are inseparably bound together, in some apparently
capricious and fortuitous respect, by a preadaptation of the one to
the other. Parasites, guests, or symbiotes, as the case may be, they
are now indissolubly wedded to some determinate species of host by
reason of an appropriate and congenital adjustment. For all that,
however, the association seems to be a contingent one, and it
appears incredible that the associates were always united, as at
present, by bonds of reciprocal advantage, mutual dependence, or
one-sided exploitation. Yet the basis of the relationship is in each
case a now inherited adaptation, which, if it does not represent the
primitive condition of the race, must at some time have been
acquired. For phenomena such as these, orthogenesis, which makes
an organ the exclusive product of internal factors, conceiving it as a
preformed mechanism that subsequently selects a suitable function,
has no satisfactory explanation. Lamarckism, which asserts the
priority of function and makes the environment mold the organ, is
equally inacceptable, in that it flouts experience and ignores the now
demonstrated existence of internal hereditary factors. But, if between
these two extremes some evolutionary via media could be found,
one must confess that it would offer the only conceivable “natural
explanation” of preadaptation.[6] All this, of course, is pure
speculation, but it serves to show that here, at any rate, the theory of
Transformism occupies a position from which it cannot easily be
dislodged.
But, besides the advantage of being able to offer a “natural
explanation” of the association of homology with adaptation,
Transformism enjoys the additional advantage of being able to make
the imagination its partisan by means of a visual appeal. Such an
appeal is always more potent than that of pure logic stripped of
sensuous imagery. When it comes to vividness and persuasiveness,
the syllogism is no match for the object-lesson. Retinal impressions
have a hypnotic influence that is not readily exorcised by
considerations of an abstract order—“Segnius irritant demissa per
aurem, Quam quae sunt oculis subjecta fidelibus,” says Horace, in
the “Ars Poetica.” Philosophers may distinguish between the
magnetic appeal of a graphic presentation and the logical cogency of
the doctrine so presented, but there is no denying that, in practice,
imagination is often mistaken for reason and persuasion for
conviction. Be that as it may, the ordinary method of bringing home
to the student the evolutionary significance of homology is certainly
one that utilizes to the full all the advantages of visual presentation.
Given a class of impressionable premedics and coeds; given an
instructor’s table with skeletons of a man, a flamingo, an ape and a
dog hierarchically arranged thereon; given an instructor sufficiently
versed in comparative osteology to direct attention to the points in
which the skeletons concur: and there can be no doubt whatever as
to the psychological result. The student forms spontaneously the
notion of a common vertebrate type, and the instructor assures him
that this “general type” is not, as it would be with respect to other
subject matter, a mere universal idea with no formal existence
outside the mind, but rather a venerable family likeness, posed for
originally by a single pair of ancestors (or could it possibly have
been, by one self-fertilizing hermaphrodite?) and recopied from
generation to generation, with certain variations on the original
theme, by the hand of an artist called Heredity. This explanation may
be true, but logically consequential it is not. However, if the dialectic
is poor, the pedagogy is beyond reproach, and the solution proposed
has in its favor the fact that it accords well with the student’s limited
experience. He is aware of the truism that children resemble their
parents. Why look for more recondite explanations when one so
obvious is at hand? The atavistic theory gratifies his instinct for
simplification, and, if he be of a mechanistic turn of mind, the
alternative conception of creationism is quite intolerable.
Nevertheless, it goes without saying that the “inference” of common
descent from the data of homology is not a ratiocination at all, it is
only a simple apprehension, a mere abstraction of similarity from
similars—“Unde quaecumque inveniuntur convenire in aliqua
intentione intellecta,” says Aquinas, “voluerunt quod convenirent in
una re.” (In lib. II sent., dist. 17, q. I, a. 1) Philosophy tells us that the
oneness of the universal is conceptual and not at all extramental or
real, but the transformist insists that the universal types of Zoölogy
and Botany are endowed with real as well as logical unity, that real
unity being the unity of the common ancestor.
Certainly, from the standpoint of practical effectiveness, the
evolutionary argument leaves little to be desired. The presentation is
graphic and the solution simple. But for the critic, to whom logical
sequence is of more moment than psychological appeal, this is not
enough. To withstand the gnawing tooth of Time and the
remorseless probing of corrosive human reason, theories must rest
on something sounder than a mirage of visual imagery!
Tell me where is fancy bred,
Or in the heart or in the head?
How begot, how nourished?
Reply, reply.
It is engendered in the eyes,
With gazing fed; and fancy dies
In the cradle where it lies.
But is it fair thus to characterize the “common ancestors” of

Transformism as figments which, like all other abstractions, have no
extramental existence apart from the concrete objects whence they
were conceived? To be sure, their claim to be real entities cannot be
substantiated by direct observation or experiment, and so a factual
proof is out of the question. Man, the late-comer, not having been
present at the birth of organic forms, can give no reliable testimony
regarding their parentage. In like manner, no a priori proof from the
process of inheritance is available, because heredity, as revealed to
us by the experimental science of Genetics, can account for specific
resemblances only, and cannot be invoked, at present, as an
empirically tested explanation for generic, ordinal, or phyletic
resemblances. It has still to be demonstrated experimentally that the
hereditary process is transcendental to limits imposed by specific
differentiation. There remains, however, the a posteriori argument,
which interprets homology and adaptation as univocal effects
ascribable to no other agency than the dual process of inheritance
and variation. What are we to think of this argument? Does it
generate certainty in the mind, or merely probability?
A moment’s reflection will bring to light the preliminary flaw of
incomplete enumeration of possibilities. To suppose that inheritance
alone can account for structural resemblance is an unwarranted
assumption. Without a doubt, there are other similifying influences at
work in Nature besides inheritance. True, inheritance is one possible
explanation of the similarity of organisms, but it is not the only one.
Even among the chemical elements of inorganic nature we find
analogous uniformities or “family traits,” which, in the absence of any
reproductive process whatever, we cannot possibly attribute to
inheritance. Mendeléeff’s discovery of the periodicity of the
elements, arranged in the order of their atomic weights, is well-
known. At each interval of an octave, a succession of chemical
types, similar to those of the preceding octave, recur. Hence
elements appearing in the same vertical column of the Periodic Table
have many properties in common and exhibit what may be called a
family resemblance. Now, we have in the process of atomic
disintegration, as observed in radioactive elements and interpreted
by the electronic theory of atomic structure, a reasonably satisfactory
basis upon which to account for the existence of these inorganic
uniformities. Here analogous chemical constitution, produced in
accordance with a general law, results in uniformity that implies a
similar, rather than an identical, cause. The hypothesis of parallelistic
derivation from similar independent origins accounts quite as well for
the observed uniformities as does the hypothesis of divergent
derivation from a single common origin. Why, then, should we lean
so heavily on the already overtaxed principle of inheritance, when
parallelism is as much a possibility in the organic world as it is an
actuality in the inorganic world?
As to the contrast here drawn between inheritance and other
similifying factors, it is hardly necessary to remark that we are
speaking of inheritance as defined in terms of Mendelian experiment
and cytological observation. In the so-called chemical theory of
inheritance, the distinction would be meaningless and the contrast
would not exist. Ehrlich’s disciple, Adami, sets aside all self-
propagating germinal determinants, like the chromomeres, in favor of
a hypothetical “biophoric molecule,” which is to be conceived as a
benzine-like ring bristling with sidechains. Around this determining
core the future organism is built up in definite specificity, as an arch
is constructed about a template. Adami has merely applied Paul
Ehrlich’s ideas concerning metabolism and immunity to the question
of heredity, commandeering for this purpose the latter’s entire toolkit
of receptors, haptophores, amboceptors, etc., as though this
grotesque paraphernalia of crude and clumsy mechanical symbols
(which look for all the world like the wrenches of a machinist, or the
lifters used by the cook to remove hot lids from the kitchen range)
could throw any valuable light whatsoever on the exceedingly
complex, and manifestly vital, phenomenon of inheritance. It does
not even deserve to be called a chemical theory, for, as Starling
correctly remarks concerning Ehrlich’s conception, “though chemical
in form,” it is not so in reality, because “it does not explain the
phenomenon by reference to the known laws of chemistry.” (Cf.
Physiology, ed. of 1920, p. 1084.) In a word, the theory of heredity,
which seeks to strip inheritance of its uniqueness as a vital process
by identifying it with the more general physicochemical processes
occurring in the organism, is a groundless speculation, that, far from
explaining, flouts the very observational data which it pretends to
elucidate. Kurz und gut! to requite the mechanist, Schäfer, with his
own Danielesque phrase, here, as elsewhere, the mechanists have
succeeded in extracting from the facts, not what the facts
themselves proclaim, but what preëxisted in their own highly-cultured
imaginations so well-stocked with cogs, cranks, ball bearings, and
other æsthetic imagery emanating from polytechnic schools and
factories.
But in arguing from the existence of parallelism in the inorganic
world to its possibility in the organic world, we are less liable to
displease the mechanists than those other extremists, the neo-
vitalists, who will be prone to deny all parity between living, and
inanimate, matter. Fortunately, we are in a position to appease the
scruples of the latter by referring to the facts of convergence as
universally accepted evidence that the phenomenon of parallelism
occurs in animate, no less than inanimate, nature. Admitting,
therefore, that the laws of organic morphology are of a higher order
than those which regulate atomic, molecular, and multimolecular
structure, these facts attest, nevertheless, that parallelisms arise in
organisms of separate ancestry which are due, not to heredity, but to
the uniform action of universal morphogenetic forces. Hence general
laws can be invoked to account for organic uniformities with the
same right that they are invoked to account for resemblances
existing between the various members of a chemical “family” like the
Halogens. And why should this not be so? Organisms have much in
common that transcends any possible scheme of evolution and that
cannot be brought into alignment with the position arbitrarily
assigned them in the evolutionary family-tree. They all originate as
single cells. Their common means of growth and reproduction is
mitotic cell division. This leads to the production of a somatella,
among the protista, and of a soma differentiated by histogenesis into
two or three primary tissues, among the metista. All these
fundamental processes are strikingly uniform throughout the entire
plant and animal world. In these universal properties of living matter,
therefore, we have a common basis for general structural and
organizational laws, which, though irreducible to the “common
ancestors” of Transformism, is quite adequate to account for both the
homologies and analogies of living matter. Accept this basis of
general laws regulating the development of living matter, and there is
no difficulty in seeing why the problems posed by exposure to
analogous environmental conditions are solved in parallel fashion by
organisms, irrespective of whether they are nearly, or distantly,
related in the sense of morphology. Transformism, on the other
hand, can only account for homology at the expense of
convergence, and for convergence at the expense of homology. So
far as a common ancestral basis is concerned, the two kinds of
resemblance are, from the very nature of the case, irreducible
phenomena.
It is only, in fact, by surrendering the principle that similarity entails
community of origin, and by falling back on the suggested common
basis of general laws, that Transformism makes room in its system
for the troublesome facts of convergence. “It might be reiterated in
passing,” says Dwight, “that this ‘convergence’ business is a very
ticklish one. We have been taught almost word for word that
resemblance implies relationship, or almost predicates it; but
according to this doctrine it has nothing to do with it whatever.”
(“Thoughts of a Cath. Anat.,” p. 190.) And in a subsequent chapter
he says: “No very deep knowledge of comparative anatomy is
needed for us to know that very similar adaptations for particular
purposes are found in very diverse animals. The curious low grade
mammal, the Ornithorhynchus, with a hairy coat and the bill of a
duck, is a familiar instance. We all know that the whales have the
general form of the fish, although they are mammals, and going
more into details we know that the whale’s flipper is on the same
general plan as that of the ancient saurians.... The origin of the eye,
according to evolutionary doctrines, has been a very difficult
problem, which gets worse rather than better the more you do for it.
Even if we could persuade ourselves that certain cells blundered
along by the lucky mating of individuals in whom they were a bit
better developed than in the others till they came to form a most
complicated organ of sight, it would be a sufficient tax on our
credulity to believe that this could come off successfully in some
extraordinary lucky species; but that it should have turned out so well
with all kinds of vertebrates is really too much to ask us to swallow.
But this is not all: eyes are very widely spread among different
classes of invertebrates. More wonderful still, the eyes of certain
molluscs and crustacea are on stalks, and this is found also in
various and very different families of fishes. How did this happen?
Was it by way of descent from the molluscs or the crustacea? If not,
how could chance have brought about such a similar result in
diverse forms?” (Op. cit., pp. 233-236.)
It may be objected that the resemblances of convergence are
superficial analogies, not to be confounded with fundamental
homologies. This contention may be disputed; for, as we shall see in
the next chapter, there are cases where the convergence is
admittedly radical, and not merely superficial. The distinction,
moreover, between shallow and basic characters is somewhat
arbitrary, and its validity is often questionable. When the skeletal
homology that relates the amphibia to the mammals, for instance, is
traced to the root of the vertebrate family tree, we find it all but
disappearing in a primitive Amphioxus-like chordate, whose so-
called skeleton contains no trace of bone or cartilage. Hence, if we
go back far enough, the homologies of today become the
convergences of a geological yesterday, and we find the vertebrate
type of skeleton arising independently in reptiles, mammals,
amphibia, and fishes.
Again, there are times when convergent analogies appear to be
more representative of the common racial heritage than the
underlying structure itself, tempting the evolutionist to fly in the face
of the orthodox interpretation, which rigidly rules out analogy in favor
of homology, and refuses to accept the eloquent testimony of a
remarkable resemblance merely because of a slight technical
discrepancy in the structural substrate. A large pinching claw, or
chela, for example, occurs in two organisms belonging to the phylum
of the arthropods, namely, the lobster and the African scorpion. Both
chelæ are practically identical in structure, but, unfortunately, the
chela of the lobster arises from a different appendage than that from
which the scorpion’s chela emerges. If they arose from
corresponding appendages, they would be pronounced “homologous
organs” and acclaimed, without hesitation, as strong evidence in
favor of the common origin of all the arthropods. In proof of this, we
call attention to the importance attached to the adaptations affecting
homologous bones in fossil “horses.” As it is, however, the two
chelæ are analogous, and not homologous, organs. Hence,
technically speaking, the two chelæ are utterly unrelated structures.
To the eye of common sense, however, the likeness appears to be
far more important than the difference, and the average person will
be inclined to view the resemblance as evidence of a community of
type. In fact, the tendency to discard superficial, and to retain only
fundamental, uniformities, is dangerous to the theory of
Transformism. When we confine our attention to what is really basic,
we find that the resemblances become so generalized and
widespread that specific conclusions as to descent become
impossible, and we lose all sense of direction in a clueless labyrinth
of innumerable, yet mutually contradictory, possibilities.
Finally, it may be noted in passing that, though it is customary with
evolutionists to regard homologous characters as the tenaciously
persistent heritage of primeval days, and to look upon adaptational
characters as adventitious and accessory to the aforesaid primitive
heritage, the supposedly older and more fundamental characters fail
to give, by the manifestation of greater fixity, any empirical evidence
whatever of their being more deeply or firmly rooted in the hereditary
process than the presumably newer adaptational characters. We
have, therefore, no experimental warrant for appropriating
homologous, rather than adaptational, characters to the process of
inheritance. “It is sometimes asserted,” says Goodrich, “that old-
established characters are inherited, and that newly begotten ones
are not, or are less constant, in their reappearance. This statement
will not bear critical examination. For, on the one hand, it has been
conclusively shown by experimental breeding that the newest
characters may be inherited as constantly as the most ancient....
While, on the other hand, few characters in plants can be older than
the green color due to chlorophyll, yet it is sufficient to cut off the
light from a germinating seed for the greenness to fail to appear.
Again, ever since Devonian times vertebrates have inherited paired
eyes; yet, as Professor Stockard has shown, if a little magnesium
chloride is added to the sea water in which the eggs of the fish
Fundulus are developing, they will give rise to embryos with one
median cyclopean eye! Nor is the suggestion any happier that the,
so to speak, more deep-seated and fundamental characters are
more constantly inherited than the trivial or superficial. A glance at
the organisms around us, or the slightest experimental trial, soon
convinces us that the apparently least important character may
reappear as constantly as the most fundamental. But while an
organism may live without some trivial character, it can rarely do so
when a fundamental character is absent, hence such incomplete
individuals are seldom met in Nature.” (Science, Dec. 2, 1921, p.
530.)
But, whether it be upon, or beneath, the surface, similitude of any
kind suffices to establish our contention that inheritance is not the
only similifying influence present in organisms, and that resemblance
is perfectly compatible with independence of ancestry. We have,
therefore, an alternative for inheritance in the explanation of organic
uniformities, and by the admission of this alternative, which, for the
rest, is factually attested by the universally acknowledged
phenomena of convergence, the inference of common descent from
structural resemblance is shorn of the last remnant of its
demonstrative force, as an a posteriori argument.
But a still more serious objection to the evolutionary interpretation
of homology and preadaptation arises from its intrinsic incoherency.
Evolution, as previously stated, is assumed to be the resultant of a
twofold process, namely, inheritance and variation. The first is a
conservative and similifying process, which transmits. The second is
a progressive and diversifying process, which diverts. To the former
process are due the uniformities of homology, to the latter the
deviations of adaptation. Upon the admission of evolutionists
themselves, however, neither of these processes behaves in a
manner consistent with its general nature, and both of them are
flagrantly unfaithful to the principal rôles assigned to them.
Nowadays the hereditary process transmits adaptational, as well as
homologous, characters. If, then, adaptational characters are more
recent than homologous characters, there must have been a time
when inheritance ceased to similify and become a diversifying
process by transmitting what it did not receive from the previous
generation. There were times when, not content with simply
reiterating the past, it began to divert former tendencies into novel
channels. In other words, inheritance becomes dualized into a
paradoxical process, which both perpetuates the old and
appropriates the new. The same inconsistency is manifest in the
process of variation, which capriciously produces convergent, no
less than divergent, adaptations. In two fundamentally identical
structures, like the wing of a bird and the foreleg of a cat, variation is
said to have produced diverse adaptations. In two fundamentally
diverse structures, like the head of an octopus and the head of a
frog, variation is said to have produced an identical adaptation,
namely, the vertebrate type of eye. It appears, therefore, that the
essentially diversifying process of variation can become, on
occasion, a simplifying process, which, instead of solving
environmental problems in an original manner, prefers to employ
uniform and standardized solutions, and to cling to its old
stereotyped methods. Inheritance similifies and diversifies, variation
converges and diverges. It is futile to attempt to reduce either of
these protean processes to a condition that even approximates
consistency. The evolutionist blows hot and cold with the same
breath. Verily, his god is Proteus, or the double-headed Janus!
Summa summarum: The evolutionary argument from homology is
defective in three important respects: (1) in its lack of experimental
confirmation; (2) in its incomplete enumeration of the disjunctive
possibilities; (3) in its inability to construct a scheme of transmutation
that synthesizes inheritance and variation in a logically coherent, and
factually substantiated formula. The first two defects are not
necessarily fatal to the argument as such. Though they destroy its
pretensions to conclusiveness, they do not preclude the fulfilment of
the moderate claim made in its behalf by Prof. T. H. Morgan, who
says: “In this sense (i.e., as previously stated) the argument from
comparative anatomy, while not a demonstration, carries with it, I
think, a high degree of probability.” (“A Critique of the Theory of
Evolution,” p. 14.) The third defect is more serious. The apparently
irreducible antagonism which the evolutionary assumption introduces
between inheritance and variation has been sensed even by the
adherents of transformism themselves, and they have searched in
vain for a formula, which, without sacrificing the facts, would bring
into concord the respective rôles of these discordant factors. “It
follows,” says Osborn, “as an unprejudiced conclusion from our
present evidence that upon Weismann’s principle we can explain
inheritance but not evolution, while with Lamarck’s principle and
Darwin’s selection principle we can explain evolution, but not, at
present, inheritance. Disprove Lamarck’s principle and we must
assume that there is some third factor in evolution of which we are
ignorant.” (Popular Science Monthly, Jan., 1905.) The point is well
taken, and unless, as Osborn suggests, there is a tertium quid by
means of which the discord can be resolved into ultimate harmony,
we see no way of liberating the theory of Transmutation from this
embarrassing dilemma.
CHAPTER III
FOSSIL PEDIGREES
“By dint of such great efforts we succeeded only in
piecing together genial romances more or less
historical.”—B. Grassi, Prof. of Comparative Anatomy,
Univ. of Rome, “La vita” (1906), p. 227.
§ 1. The Argument in the Abstract
The palæontological argument for evolution is based upon the

observed gradual approximation in type of the earlier forms of life, as
represented by the fossils still preserved in successive geological
strata, to the later forms of life, as represented by the contemporary
species constituting our present flora and fauna. Here the observed
distribution in time supplements and confirms the argument drawn
from mere structural affinity. Here we are no longer dealing with the
spatial gradation of contemporary forms, arranged on a basis of
greater or lesser similarity (the gradation whence the zoölogist
derives his argument for evolution), but with a temporal gradation,
which is simultaneously a morphological series and an historical
record. The lower sedimentary rocks contain specimens of organic
life very unlike modern species, but, the higher we ascend in the
geological strata, the more closely do the fossil forms resemble our
present organisms. In fact, the closeness of resemblance is directly
proportional to the proximity in time, and this seems to create a
presumption that the later forms of life are the modified descendants
of the earlier forms. Considered in the abstract, at least, such an
argument is obviously more formidable than the purely anatomical
argument based on the degrees of structural affinity observable in
contemporary forms. It ought, therefore, to be extremely persuasive,
provided, of course, it proceeds in rigorous accord with indubitably
established facts and rules out relentlessly the alloy of uncritical
assumptions.
Here, likewise, we find the theory of transformism asserting its
superiority over the theory of immutability, on the ground that
evolutionism can furnish a natural explanation for the gradational
distribution of fossil types in the geological strata, whereas the theory
of permanence resorts, it is said, to a supernaturalism of reiterated
“new creations” alternating with “catastrophic exterminations.” Now, if
this claim is valid, and it can be shown conclusively that fixism is
inevitably committed to a postulate of superfluously numerous
“creations,” then the latter theory is shorn of all right to consideration
by Occam’s Razor: Entia non sunt multiplicanda sine ratione. It is
rather difficult to conceive of the Creator as continually blotting out,
and rewriting, the history of creation, as ruthlessly exterminating the
organisms of one age, only to repopulate the earth subsequently
with species differing but little from their extinct predecessors—ad
quid perditio haec? Such procedure hardly comports with the
continuity, regularity and irrevisable perfection to be expected in the
works of that Divine Wisdom, which “reacheth ... from end to end
mightily and disposeth all things sweetly” (Wisdom, viii; 1), which
“ordereth all things in measure, and number and weight.” (Wis. xi;
21.)
Following the lead of other evolutionists, Wasmann has striven to
saddle fixism with the fatuity of periodic catastrophism and “creation
on the installment plan.” But even Cuvier, who is credited with having
originated the theory of catastrophism, did not go to the absurd
extreme of hypothecating reiterated creations, but sought to explain
the repopulation of the earth after each catastrophe by means of
migrations from distant regions unaffected by the catastrophe.
Historically, too, fixism has had its uniformitarian, as well as its
catastrophic, versions. In fact, Huxley classifies both
uniformitarianism and catastrophism as fixistic systems, when he
says: “I find three more or less contradictory systems of geologic
thought ... standing side by side in Britain. I shall call one of them
Catastrophism, another Uniformitarianism, the third Evolutionism.”
(“Lay Sermons,” p. 229.) Obviously, then, fixism is separable from
the hypothesis of repeated catastrophes alternating with repeated
“creations.” Stated in proper terms, it is at one with evolutionism in
rejecting as undemonstrated and improbable the postulate of
reiterated cataclysms. It freely acknowledges that, in the absence of
positive evidence of their occurrence, the presumption is against
extraordinary events, like wholesale catastrophes. It sanctions the
uniformitarian tenet that ordinary cosmic processes are to be
preferred to exceptional ones as a basis of geological explanation,
and it repudiates as unscientific any recourse to the unusual or the
miraculous in accounting for natural phenomena. Its sole point of
disagreement with evolutionism is its refusal to admit organic
changes of specific magnitude. It does, however, admit germinal
changes of varietal magnitude. It also recognizes that the external
characters of the phenotype are the joint product of germinal factors
and environmental stimuli, and admits, in consequence, the
possibility of purely somatic changes of considerable profundity
being induced by widespread and persistent alterations in
environmental conditions. Like Darwin, the uniformitarian fixist
ascribes the origination of organic life to a single vivifying act on the
part of the Creator, an act, however, that was formative rather than
creative, because the primal forms of life, whether few or many, were
all evolved through Divine influence from preëxistent inorganic
matter. Unlike Darwin, he ascribes the continuation of organic life to
generative processes that were univocal (generationes univocae),
and not gradually-equivocal (generationes paulatim aequivocae). In
the next chapter, we shall see that, in attributing the initial formation
of species to a Divine act, neither Darwin nor the creationists
exposed themselves to the charge of explaining the “natural” by
means of the “miraculous.” And, as for the process by which living
forms were continued upon earth, the univocal reproductive process
upheld by fixism is more manifestly a natural process than the
gradually-equivocal generation of variable inheritance hypothecated
by the theory of transmutation. The sole matter of dispute between
the two views is whether the life-cycles of organisms are circles or
spirals.
But all this, it will be said, is purely negative. Merely to refrain from
any recourse to the extraordinary or the supernatural is by no means
sufficient. “Natural explanations” must be explanatory as well as
natural. Unless there be a simplification, a reduction of plurality to
unity, a resolution of many particular problems into a common
general problem, we have no explanation worthy of the name.
Granting, therefore, that uniformitarian fixism does not recur to the
anomalous or the miraculous, it still lies open to the charge of failing
in its function as an explanation, because it multiplies origins in both
space and time. Transformism, on the contrary, is said to elucidate
matters, inasmuch as it unifies origins spatially and temporally.
That transformism successfully plausibleizes a unification of
origins in space, is true only in a limited and relative sense. The most
that can be said for the assumption, that resemblances rest on the
principle of common inheritance, is that it permits of a numerical
reduction of origins, but this numerical reduction will, by an intrinsic
necessity, always fall short of absolute unification. The monophyletic
derivation of all organic forms from one primordial cell or protoblast
is a fantastic dream, for which, from the very nature of things, natural
science does not, and can not, furnish even the semblance of an
objective basis. The ground is cut from under our feet, the moment
we attempt to extend the principle of descent outside the limits of an
organic phylum. The sole basis of inference is a group of
uniformities, and, unless these uniformities predominate over the
diversities, there can be no rational application of the principle of
transformism. Hence, the hypothesis, that organisms are
consanguineous notwithstanding their differences, loses all value as
a solution at the point where resemblances are outweighed by
diversities. The transmutation assumed to have taken place must be
never so complete as to have obliterated all recognizable vestiges of
the common ancestral type. “Whenever,” says Driesch, “the theory
that, in spite of their diversities, the organisms are related by blood,
is to be really useful for explanation, it must necessarily be assumed
in every case that the steps of change, which have led the specific
form A to become the specific form B, have been such as only to
change in part that original form A. That is to say: the similarities
between A and B must never be overshadowed by their diversities.”
(“Science and Philosophy of the Organism,” v. I, p. 254.) When,
therefore, the reverse is true and diversities are prevalent over
uniformities, we are left without clue or compass in the midst of a
labyrinth of innumerable possibilities. Such are the limits imposed by
the very nature of the evidence itself, and the scientists, who
transgress these limits, by attempting to correlate the primary phyla,
are on a par with those unconvincible geniuses, who continually
besiege the Patent Office with schemes ever new and weird for
realizing the chimera of “perpetual motion.”
Thus scientific transformism is unable to simplify the problem
beyond a certain irreducible plurality of forms, lesser only in degree
than the plurality postulated by fixism. This being the case, the
attempts of Wasmann and Dorlodot to prune the works of Creation
with Occam’s Razor are not only presumptuous, but precarious as
well. Qui nimis probat, nihil probat! If it be unworthy of God to
multiply organic origins in space, then monophyletic descent is the
only possible alternative, and polyphyletic transformism falls under
the same condemnation as fixism. Yet the polyphyletic theory of
descent is that to which both Wasmann and Dorlodot subscribe, as it
is, likewise, the only kind of transformism which science can ever
hope to plausibleize. Besides, too close a shave with Occam’s Razor
would eliminate creation altogether, since all theologians cheerfully
admit that it was the result of a free and unnecessary act on the part
of God. When we apply our rationes convenientiae to the Divine
operations, we must not make the mistake of applying them to the
Divine action itself instead of the created effects of that action. We
may be competent to discern disorder and irregularity in finite things,
but we are wholly incompetent to prescribe rules for Divine conduct.
To say that God is constrained by His infinite Wisdom to indirect,
rather than direct, production, or that He must evolve a variety of
forms out of living, rather than non-living, matter, is to be guilty of
ridiculous anthropomorphism. There is no a priori reason, founded
upon the Divine attributes, which restricts God’s creative action to
the production of this, or that, number of primordial organisms, or
which obliges him to endow primitive organisms with the power of
transmutation.
But the fact that these rationes convenientiae fail to establish the a
priori necessity of a unification of organic origins in space, does not
imply that they are without value in suggesting the unification of
organic origins in time. Order and regularity are not excluded by
spatial multiplicity, but they may easily be excluded by the
incongruities of an irregular succession of events. Indeterminism and
chance are, indeed, inseparable from the course of Nature. There is
in matter an unlimited potentiality, incommensurate with the limited
efficacy of natural agencies. Hence it evades the absolute control of
all finite factors and forces. But the anomalies and irregularities,
which are contingent upon the limitation or frustration of second
causes unable to impose an iron necessity upon evasive matter, are
not referable to the First Cause, but rather to the finite efficacy of
second causes. Such anomalies in natural processes, consequently,
are not inconsistent with infinite wisdom and power on the part of the
Creator. If, on the contrary, the anomaly occurs, not in the form of an
accidental frustration of a natural agency, but in the form of an
intrusive “new creation,” the irregularity in question would then be
referable to the Creator Himself, and such derogations of order are
inadmissible, except as manifestations of the supernatural. In fact,
the abrupt and capricious insertion of a “new creation” into an order
already constituted, say, for instance, the sudden introduction of
Angiosperms in the Comanchian period, or of mammals in the
Tertiary, would be out of harmony with both reason and revelation.
Unless there is a positive reason for supposing the contrary, we must
presume that, subsequent to the primordial constitution of things, the
Divine influence upon the world has been concurrent rather than
revolutionizing. Hence a theory of origins, compatible with the
simultaneous “creation” of primal organisms, is decidedly preferable
to a theory, which involves successive “creations” at random. That
transformism dispenses with the need of assuming a succession of
“creative” acts, is perfectly obvious, and, unless fixism can emulate
its rival system in this respect, it cannot expect to receive serious
attention.
But once fixism assumes the simultaneousness of organic origins,
it encounters, in the absence of modern organic types from ancient
geological strata, a new and formidable difficulty. Cuvier’s theory of
numerous catastrophes followed by wholesale migrations of the
forms, which had escaped extinction, is tantamount to an appeal to
the extraordinary and the improbable for purposes of explanation,
and this, as we have seen, is an expedient, which natural science is
justified in refusing to sanction. Nor does the appeal to the
incompleteness of the geological record offer a more satisfactory
solution. It is tax enough, as we shall see, upon our credulity, when
the transformist seeks to account thereby for the absence of
intermediate types, but to account in this fashion for the absence of
palæozoic Angiosperms and mammals is asking us to believe the
all-but-incredible. It would not, therefore, be advisable for the fixist to
appropriate the line of defense suggested for him by Bateson—“It
has been asked how do you know for instance that there were no
mammals in Palæozoic times? May there not have been mammals
somewhere on the earth though no vestige of them has come down
to us? We may feel confident there were no mammals then, but are
we sure? In very ancient rocks most of the great orders of animals
are represented. The absence of the others might by no great stress
of imagination be ascribed to accidental circumstances.” But the
sudden rise of the Angiosperms in the early part of the Mesozoic era
is an instance of de novo origin that is not so easily explained away.
Hence Bateson continues: “Happily, however, there is one example
of which we can be sure. There were no Angiosperms—that is to say
‘higher plants’ with protected seeds—in the carboniferous epoch. Of
that age we have abundant remains of a worldwide and rich flora.
The Angiosperms are cosmopolitan. By their means of dispersal they
must immediately have become so. Their remains are very readily
preserved. If they had been in existence on the earth in
carboniferous times they must have been present with the
carboniferous plants, and must have been preserved with them.
Hence we may be sure that they did appear on earth since those
times. We are not certain, using certain in the strict sense, that
Angiosperms are the lineal descendants of the carboniferous plants,
but it is much easier to believe that they are than that they are not.”
(Science, Jan. 20, 1922, p. 58.)
It would thus appear, that not all the organic types of either the
plant, or the animal, kingdom are of equal antiquity, and that the

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The African Charter on Human and

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