Realizing Universal Human Rights Norms through Regional Human Rights Mechanisms: Reinvigorating the African System


REALIZING UNIVERSAL HUMAN RIGHTS NORMS
THROUGH REGIONAL HUMAN RIGHTS MECHANISMS:

REINVIGORATING THE AFRICAN SYSTEM

George William Mugwanya*

I. INTRODUCTION

On December 10, 1999, the international community celebrated the 50th
Anniversary of the Universal Declaration of Human Rights (UDHR). The
UDHR, adopted by the United Nations General Assembly on December 10,
1948, is the centerpiece of the international human rights revolution. It is the
first comprehensive statement enumerating the basic rights of the individual
as promulgated by a universal international organization-the United Nations
(U.N.). The Declaration states a common understanding of the peoples of the
world concerning the inalienable rights of all members of the human family
and constitutes an obligation for the members of the international community.
The successes that have been accomplished since the creation of the United

Nations in 1945 and the adoption of the UDHR in 1948 must be applauded.
On the other hand, however, it is very pertinent to step back and identify
challenges hindering the human rights revolution and the possible ways to
address them. The cardinal aim of the human rights revolution that began
with the establishment of the U.N. Charter and the adoption of the UDHR,
followed by a host of other international and regional human rights
instruments, was to ensure, inter alia, the respect for and protection of human
rights and fundamental freedoms of the entire human family everywhere. The
ultimate aim was to ensure that human rights were translated into reality at the
grassroots (within each state's jurisdiction) and be meaningful in people's
lives.

The purpose of this Article is to examine the promise of regional human
rights systems in the realization of universal norms. Of particular pertinence,
the Article analyzes and appraises the role and effectiveness of the African
regional human rights system in the realization of universal human rights. The
challenges facing the African system are examined and the possible ways to

* Doctoral Candidate (JSD), Notre Dame Law School, Indiana; Advocate ofthe Uganda

Courts of Judicature and Lecturer, Faculty of Law, Makerere University (Kampala, Uganda);
LL.B. (Hons) (MUK), LL.M. (With Merit) (PRET), Dip. L.P. (LDC), Cert. (Int. Hum. Rts)
(Strasbourg), Cert. (Chiedu) (Strasbourg), Cert. (Int. Buss. Trans.) (ILl). An earlier version of
this paper was presented to the Northwestern University Law School (Chicago) Conference
(organized by the Midwest Coalition for Human Rights) in Commemoration of the 50th
Anniversary of the Universal Declaration of Human Rights, December 4-5, 1998. I would like
to thank the Center for Civil and Human Rights at Notre Dame Law School and Professors
Barbara and Edda for their help.



IND. INT'L & COMP. L. REV.

reinvigorate the system are identified. The Article argues that while in the
protection and realization of human rights focus ultimately falls on what
happens at the grassroots, the role of supra-national instruments, institutions,
and structures at the global and regional levels cannot be overemphasized.
The Article underscores the pivotal role of the global system, but demonstrates
that regional human rights systems are better placed, and can therefore be
more effective than systems with universal scope in impacting and influencing
the realization of human rights at the grassroots. In this regard, the efforts by
the United Nations to encourage and support the creation of regional
arrangements must be saluted.

Following this Introduction, a brief commentary is made on the human
rights revolution, its successes, prospects, as well as its challenges-the
human rights problematique. The promise of the regional human rights
systems in general and the status quo of the African system in particular,
constitute Part Ill of the discussion. Part IV addresses the strengths and
challenges of the African human rights system. The discussion appraises and
assesses the effectiveness of the African human rights system and identifies
the challenges facing the system. Part V offers proposals to reinvigorate the
African regional human rights system.

II. THE GLOBAL HUMAN RIGHTS REVOLUTION: SUCCESSES, PROSPECTS,
AND CHALLENGES

The adoption of the U.N. Charter in 1945 set in motion a human rights
revolution that culminated in the internationalization and humanization of
international law. Due to the widely shared conviction in the course of World
War H prior to and in the course of which millions were mercilessly
persecuted and killed by the Nazis in effectuating Hitler's Third Reich
government policy of eliminating all Jews (euphemistically labeled the "final
solution to the Jewish Question"), the Allied powers fought the war to
vindicate human rights and fundamental freedoms "for all." Human rights
issues were no longer to be viewed as an exclusively domestic issue; they
were to be viewed collectively as a matter of common interest born out of man
as a human being regardless of national boundaries. The horrors of the
Second World War and the consequent awareness of the close connection
between respect for human dignity and peace motivated the U.N. Charter's
qualitative leap towards the promotion of human rights "for all." The
conviction in the universal respect for human rights was above all carried
forward with the adoption of the Universal Declaration of Human Rights
(UDHR) in 1948, the International Covenant on Civil and Political Rights
(ICCPR) with an Optional Protocol, the International Covenant on Economic,
Social, and Cultural Rights (ICESCR)-the three of which are collectively
known as the "International Bill of Rights"--and a host of other human rights

[Vol. 10:1



UNIVERSAL HUMAN RIGHTS NoRMs

instruments.' The result is a vast body of legal norms, a veritable human
rights code that gives meaning to the phrase "human rights and fundamental
freedoms" and clarifies the obligations of member states imposed by Articles
55 and 56 of the U.N. Charter. Today, despite any controversies in which the
concept of human rights may be enmeshed,2 it is generally accepted that
human rights are universal.' They are inalienable and inherent birthrights that
are due and enure to every human being in any society regardless of any
distinction. Further, notwithstanding the fact that different implementation
measures are called for as regards civil and political rights vis-i-vis economic,
social, and cultural rights, this does not mean any divisibility or hierarchy of
rights, but interdependence. States are under an obligation to give effect to

1. These instruments have been adopted by the U.N. and its specialized agencies. See,
e.g., Second Protocol to the International Covenant on Civil and Political Rights Aiming at the
Abolition of the Death Penalty, G.A. Res. 44/128, U.N. GAOR, 44th Sess., Supp. No 49, U.N.
Doc. A/44/49 (1990); Convention on the Rights of the Child, G.A. Res 44/25, 44 U.N. GAOR
Supp. No. 49, U.N. Doc. A/44/736 (1989); Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess.,
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984); Convention on the Elimination of All
Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. GAOR, U.N. Doc.
AIRES/34/180 (1980); International Convention on the Suppression and Punishment of the
Crime of Apartheid, openedfor signature Nov. 30, 1973, 1015 U.N.T.S. 244 (entered into force
July 18, 1976); International Convention on the Elimination of All Forms of Racial
Discrimination, Jan. 7, 1966, 660 U.N.T.S 195 (entered into force Jan. 4, 1969); Declaration
on the Elimination of All Forms of Racial Discrimination, G.A. Res. 1904 (XVIII), U.N.
GAOR, I 8th Sess., Supp. No. 15, U.N. Doc. A/5515 (1963); Convention on the Political Rights
of Women, Mar. 31, 1953, 27 U.S.T. 1909, 193 U.N.T.S. 135; Convention Relating to the
Status of Refugees, July 28, 1951, 189 U.N.T.S. 150; Convention on the Prevention and
Punishment of the Crime of Genocide, Jan. 12, 1951, 102 Stat. 3045, 78 U.N.T.S. 277. See
generally THOMAS BUERGENTHAL, INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL 58-78 (2d
d. 1995) (listing some of the major U.N. human rights treaties).

2. On some ofthese controversies, see generally Maurice Cranston, Human Rights, Real
or Supposed. in POLITICAL THEORY AND THE RIGHTS OF MAN 43 (David Raphael ed., 1967)
(arguing against the expansion of traditional human rights, which are civil and political in
nature, into social and economic rights); HUMANRIGHTS: PROBLEMS, PERSPECTiVESAND TEXTS
(F. E. Dowrick ed., 1979) (examining human rights from a inter-disciplinary perspective);
HUMAN RIGHTS: FROM RHETORIC TO REALITY (Tom Campbell et al. eds., 1986) (offering an
analysis of various human rights issues, such as reproductive rights, medical treatment, criminal
procedure, and labor issues); INTERNATIONAL PROTECTION OF HUMAN RIGHTS (Asbj6m Eide &
August Schou eds., 1968) (acknowledging the need for more deliberate and expansive
implementation of human rights measures worldwide).

3. On this consensus, see Vienna Declaration and Programme of Action U.N., GAOR,
World Conf. on Hum. Rts., 48th Sess., 22nd plen. mtg. 115, U.N. Doc. A/CONF. 157/24,
[hereinafter Vienna Declaration]; BUERGENTHAL, supra note I,at 19; UNITEDNATIONS, HUMAN
RIGHTS: QUESTIONS AND ANSWERS 4 (1987); Francesco Francioni, The Jurisprudence of
International Human Rights Enforcement: Reflections on the Italian Erperience, in ENFORCING
INTERNATIONALHUMAN RIGHTS IN DOMESTIC COURTS 15, 16 (Benedetto Conforti & Francesco
Francioni eds., 1997); Kofi A. Annan, Strengthening United Nations Action in the Field of
Human Rights: Prospects and Priorities, 10 HARv. HUM. RTS. J. 1 (1997); Louis Henkin, Rights
Here and There, 81 COLUM. L. REv. 1582 (1981).

1999]



IND. INT'L & COMP. L. REv.

both categories of rights.'
In order to implement human rights norms, and call on states to account

for human rights violations, the international community has over the years
put in place various institutions and mechanisms. The U.N. Economic and
Social Council (ECOSOC) Resolution 1235 of 1967, followed by ECOSOC
Resolution 1503 of 1970, laid the foundation of the U.N. Charter-based
systems for the protection ofhuman rights. By and large, all the various U.N.
Charter organs and specialized agencies have played a direct or indirect role
in the realization of human rights.5 The Charter-based mechanisms have been
buttressed by treaty-based institutions and mechanisms for the promotion and
protection of human rights. The mid-to-late 1970s witnessed the
establishment of the U.N. Human Rights Committee as an enforcement
mechanism for the ICCPR. Similarly, as regards the ICESCR, starting in
1976, the ECOSOC adopted a series of resolutions that culminated in the
establishment of a Committee on Economic, Social, and Cultural Rights as a
permanent body to promote the implementation of the Covenant. Further, the
Committee on the Elimination of Racial Discrimination (CERD) came into
being with the entry into force of the International Convention on the
Elimination of Racial Discrimination. Various other treaty-based institutions
such as the Committee on the Elimination of Discrimination Against Women
(CEDAW) and the Committee on the Rights of the Child are all in place,
while specialized agencies of the U.N., such as the U.N. Educational,
Scientific and Cultural Organization (UNESCO) and the International Labour
Organization (ILO) have over the years adopted special mechanisms for
dealing with human rights violations falling within their scope of
competence.6

Further, the end of the Cold War reinforced the international human
rights movement. It liberated international efforts to promote human rights
from the ideological conflicts and political sloganeering of the past vices that
had for decades forced the international community to close its eyes to
massive violations of human rights committed by states. Recent efforts by the
international community to hold individuals, and not only states,
internationally criminally responsible for heinous human rights violations, the
evolving emphasis on the protection of individuals belonging to minority
groups, and the role the Security Council is beginning to play under Chapter

4. See Vienna Declaration, supra note 3, para. 5.
5. See Boutros Boutros-Ghaii, Introduction, in UNITEDNATIONS, THE UNITEDNATIONS

AND HUMAN RIGHTS 1945-1995, at 3,9-18(1995). See also B. G. RAMCHARAN, THE CONCEPT
AND PRESENT STATUS OF THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS, FORTY YEARS
AFTERTHE UNIVERSALDECLARATION 246-58 (1989) (concentrating on the main general organs
of the United Nations, such as the Security Council, the General Assembly, the Economic and
Social Council, and the Commission on Human Rights).

6. See. e.g., UNESCO 104 EX/Decision (1978).

[Vol. 10:1



UNIVERSAL HUMAN RIGHTS NORMS

VII of the U.N. Charter in dealing with massive violations of human rights, all
point to a genuine maturing of approaches the international community is
adopting in the struggle to foster the protection of human rights.

A. The Human Rights Problematique

The foregoing does not suggest that everything is running well and that
both the international and national systems designed to ensure the respect for
and the realization of human rights are all in place and working effectively.
Despite the increased importance assigned to the pursuit of human rights
during the latter part of this century, the commission of human rights
violations has continued the world over, and in several instances such
commissions have taken place on a massive scale. Indeed, this has been the
case despite a predicated decrease in the incidence of human rights violations
resulting from the dissolution of the Communist Soviet bloc in 1989 and the
movement towards democracy.7 However, human rights conditions have been
more precarious on the African continent." In spite of the optimism inspired
by the attainment of independence, Africa has failed to achieve universal
adherence to international human rights norms. The recent carnage in
Rwanda, the ongoing political strife in southern Sudan, northern and western
Uganda, Zaire, Lesotho, Burundi, and Somalia, that have left thousands dead,
and caused a horrific violation of a host of other rights and fundamental
freedoms, exemplify the all-too-familiar difficulties of human rights
enforcement in Africa. Even within societies that may be described as
"democracies," human rights remain illusory in the day-to-day lives of the
majority. The world at large and Africa in particular, stands poised between
the extremities of hope and despair.

B. Implementation

Against the backdrop of the human rights situation the world over, and
more lamentably that in Africa, the basic challenge facing the human rights
revolution is that of implementation. In the half century since the inception
of the human rights revolution, one of the cardinal successes of this revolution
has been in the elaboration of human rights norms, and the numbers of states
bound by these norms. Today, it is generally agreed that there is no shortage
of human rights norms. The most pressing problem is the implementation of
these norms at the "grass roots"and making them meaningful in people's lives.

7. This hope was alluded to in the Charter of Paris for a New Europe, 1990, reprinted
in BASIC DOCUMENTS ON HUMAN RIGHTS 474 (Ian Brownlie ed., 3d ed. 1992).

8. See generally AMNESTY INTERNATIONAL, ANNUAL REPORT (1990) (reporting human
rights abuse in all African states).

1999]



IND. INT'L & COMP. L. REv.

As Kofi Annan, the U.N. Secretary General has noted:

After the years invested in the elaboration of an international
code of conduct in human rights-as embodied in
international conventions and other legally binding
instruments-the priority now is to translate these norms and
standards into national legislation and national practices, thus
bringing about real change in peoples' lives.9

The U.N. High Commissioner for Human Rights has also observed:

In general, I believe that we all agree that there is no shortage
of international human rights standards. Nor, unfortunately,
is there a shortage of situations demanding improvement of
respect for human rights. Our basic challenge is to
implement human rights standards and make human rights
meaningful in people's lives.'

111. THE PROMISE OF REGIONAL HUMAN RIGHTS ARRANGEMENTS: THE
STATUS QUO OF THE AFRICAN SYSTEM

The normative and institutional evolution of international human rights
law at the global level played a prominent role in encouraging the creation of
regional human rights systems in Europe, the Americas, Africa, and more
recently the emerging systems in Asia and the Arab States. The U.N.'s role in
encouraging the creation of regional human rights systems must be saluted."
Regional systems have served as both institutional and normative building
blocks and instruments for the realization of human rights at the grassroots.

9. Annan, supra note 3, at 1.
10. U.N. ESCOR. 52d Sess., at 4, U.N. Doc. E/CN.4/1996/50/Add. 1 (1995).
11. At the U.N.'s beginning, it was believed that regional approaches to human rights

might detract from the universality of human rights, and therefore the wisdom of encouraging
the creation of regional human rights systems was to some extent doubted and resisted by the
U.N. This view later changed, particularly as the European and Inter-American systems were
evolving. In fact, through an ad hoc study group, the U.N. actually considered creating regional
human rights regimes of its own. However, the U.N. ultimately concluded that the member
states themselves bore the responsibility for forming regional human rights systems. Thus, via
Resolution 32/127, the U.N. General Assembly asked states not belonging to human rights
regimes "to consider agreements with a view to the establishment within their respective regions
of suitable regional machinery for the promotion and protection of human rights." See G.A.
Res. 32/127,32 U.N. GAOR, 105th plen. intg., U.N. Doc. A132/458 (1977), reprinted in 31
U.N.Y.B. 740(1977). Two subsequent resolutions reiterated the General Assembly's call: G.A.
Res. 33/167, 33 U.N. GAOR, 90th plen. mtg., U.N. Doc. A/33/509 (1978), reprinted in 33
U.N.Y.B. 871 (1979). See generally Bums H. Weston et al., RegionalHuman RightsRegimes
A Comparison and Appraisal, 20 VAND. J. TR.ANSNAT'L L. 585 (1987).

[Vol. 10:1



UNIVERSAL HUMAN RIGHTs NoRMs

Over the years, regional systems, particularly those established in Europe and
the Americas, have provided the necessary intermediary between state
domestic institutions which violate or fail to enforce human rights and the
global human rights system which alone cannot provide redress to all
individual victims of human rights violations. At the global level, no
permanent human rights court has thus far been created to allow individual
complaints against governments for violations of human rights. It was at the
regional level, in Europe, that the first system allowing for effective individual
complaints against governments for violations of human rights was created.
This system became the model of human rights realization in the other
regional systems-the Inter-American system has a court, and the African
system is in the process of creating one. Regional systems have served to fill
gaps in the global human rights mechanisms. They have fruitfully
complemented the global human rights system by impacting and influencing
domestic human rights practice in member states. Although each regional
system has its own issues and concerns arising out of diversity in each
system's origins, all of them have elements of uniformity. All regional
systems began as the global human rights system was developing and they
were inspired by universal norms as embodied, inter alia, in the UDHR.

Regional systems are better placed and can therefore be more effective
than systems with universal scope. Regional systems are flexible and have the
ability to change as conditions around them change and sometimes do so
quickly. This is because proposals for change in regional systems are likely
to be meet less resistance than those of the global system. The great number
of states with different traditions that are involved in the global system make
implementation more complicated. On the other hand, shared legal, political,
socioeconomic, intellectual, and cultural traditions and aspirations within a
regional setting are more likely and do serve as cardinal bases for
particularized and effective human rights protections at the regional level.
The drafters of the African Charter were well driven by this conviction.'"
Within the regional arena, shared traditions create homogeneity which
facilitates debate over the substance of the rights protected and assist in the
development of more or less familiar systems of redress, thereby enhancing
the actual promotion and protection of human rights. 3 Geographical

12. It was asserted:
All that could be said about this document [the Charter]... is that it strives to
secure a certain equilibrium, and to emphasize certain principles and guidelines
of our Organization [the OAU] as well as the aspirations of the African peoples.
It seeks not to isolate man from society, but as well that society must not swallow
the individual. Such is the wisdom that was to be recalled from the very
beginning of the proceedings.

OAU Doc. AHG/102/XVII, Nairobi, June 1981, at 22.
13. See THOMAS BUERGENTHAL, The American and European Conventions on Human

Rights: Similarities and Differences, 30 AM. U. L. REV. 155, 156 (1980).

1999)



IND. INT'L & COMP. L. REv.

proximity and cultural propinquity inherent within a regional framework make
more probable the investigation and remedying of human rights violations. In
the absence of a regional or global police force or army or prison to enforce
compliance with international human rights obligations, supra-national
institutions have to rely more on shame and pressure mechanisms, such as
economic sanctions, the severance of diplomatic relations, sport, and other ties
against the recalcitrant state. These mechanisms are likely to be more
effective in respect of those states in a regional arrangement where states are
in constant contact. Geographical proximity in regional systems leads to
socioeconomic, environmental, and security interdependence which more
easily forces a recalcitrant state once isolated to comply with its international
human rights obligations. These realities place regional human rights systems
in a strong position to enforce universal human rights norms.

A. The African Charter on Human and Peoples'Rights4 and The African
Commission Human and Peoples' Rights

From the foregoing analysis, it is clear that the adoption of the African
Charter on Human and Peoples' Rights must, per se, constitute a fundamental
input in the struggle for the realization of international human rights norms on
the African continent. The system must strive to improve human rights on the
African continent.

The African Charter was adopted by the Assembly of Heads of State
Government in 1981 and came into force in 1986. As of January 1998, the
Charter had been ratified by fifty-one states of the fifty-three Organisation of
African Unity (OAU) members.' 5 The African system is designed to function
within the institutional framework of the OAU. The Charter incorporates
many of the rights as embodied in other supra-national human rights
instruments. However, there are some differences between the Charter and
the two regional systems. First, the Charter brings together the three
dimensions of rights under one roof, namely civil and political rights;
economic, social, and cultural rights; and "people's rights" (sometimes also
called collective or solidarity rights---an individual can only enjoy these rights
in a collective sense as a member of the community).' Second, the Charter

14. See African Charter on Human and Peoples' Rights, O.A.U. Doc
CAB/LEG/67/3/Rev.5 (entered into force Oct. 21, 1986), reprinted in BASIC DOCUMENTS ON
HUMAN RIGHTS 551 (Ian Brownlie ed., 3d ed. 1992) [hereinafter African Charter].

15. Ethiopia and Eritrea have not ratified the Charter.
16. See Wolfgang Benedek, The Rights of Peoples: The Main Issues, 16 BULLETIN OF

AUSTRALIAN SOCIETY OF LEGAL PHILOSOPHY 71-79 (No. 56, 1991). Under the Charter,
people's rights include the right to existence, the right to self-determination, peace, and
development, and the right to a general satisfactory environment. See African Charter, supra
note 14, arts. 19-24, at 556-57.

[Vol. 10: 1



UNIVERSAL HUMAN RIGHTS NORMS

incorporates the individual's duties towards the family and society, the state,
and the international community. 7 Third, apart from omitting some rights,
many of the rights it enumerates are drafted with less judicial precision and
permit more restrictions (claw-backs) than the two regional treaties."
Additionally, the Charter omits a derogation clause. Last, the Charter does not
create a court of human rights. 9 Instead, it establishes an African
Commission on Human and Peoples' Rights (the Commission). The
Commission is invested with promotional and quasi-judicial functions. The
promotional mandate is broad. It includes the power to undertake studies,
convene conferences, initiate publication programs, disseminate information,
and collaborate with national and local institutions concerned with human and
people's rights."0 The quasi-judicial powers of the Commission include so-
called interpretative powers and powers applicable to the resolution of
disputes involving allegation of human rights violations. The Commission has
thejurisdiction to interpret "all the provisions of the... Charter at the request
of a State Party, an institution of the OAU or an African Organization
recognized by the OAU."2' Unlike the other systems, in dealing with
violations of human rights, the African system envisages not only inter-state
and individual communications procedures, but also a special procedure for
situations of gross and systematic violations.22

Since its inception, the Commission has endeavored to discharge its
mandate.2" In general, the Commission started off very cautiously.24

Gradually, however, the Commission has established itself as an institution of
some importance.25 Over the years, the Commission has augmented its role
beyond the likely intention of the drafters and has displayed features of

17. See African Charter, supra note 14, arts. 27-29, at 558. Duties include the duty to
serve one's national community, preserve and strengthen national independence and territorial
integrity, preserve and strengthen social and national solidarity, and not to compromise national
security. Id.

18. See infra Part IV.
19. The African system is now in the process of establishing a human rights court. See

June 8, 1998, Draft Protocol to the African Charter on Human and Peoples' Rights on the
Establishment of an African Court on Human and People's Rights,
OAU/LEG/EXP/AFCHPRIPROT (11I), reprinted in 9 AFR. J. INT'L & COMP. L. 953 (1997)
[hereinafter Draft Protocol].

20. See African Charter, supra note 14, art. 45(I)(a), at 561.
21. See id. art. 45(3), at 561.
22. See id. art. 58, at 564.
23. See EVELYN A. ANKUMAH, THE AFRICAN COMMISSION ON HUMAN AND PEOPLES'

RIGHTS: PRACTICE AND PROCEDURES (1996).
24. In its very first session in Addis Ababa, the Secretary-General cautiously set the pace

of the Commission by exhorting the members on the sensitivity and difficulties that are
encountered in the promotion of human rights in Africa. See 24 AFR. RES. BULL 8387, 8387-
88 (1987).

25. See ANKUMAH, supra note 23.

1999]



IND. INT'L & COMP. L. REv.

activism in enforcing human rights. The ability of the Commission to write
its own rules of procedure has enhanced its functioning and allowed it to
expand its role considerably.26 In its First Annual Report, the Commission
"felt that the magnitude and complex nature of the tasks it had to carry out
demanded that it should stand on a solid foundation."27 There are a number
of instances of activism on the part of the Commission. It suffices to mention
a few: Article 58 of the Charter limits the protective role of the Commission
by confining it to cases that reveal a series of gross and systematic
violations-the Commission is mandated to draw the attention of the OAU
Assembly, and the Assembly may then instruct the Commission to undertake
an investigation and draw up a report. It appears that a literal reading of the
Charter excluded from the Commission's jurisdiction separate individual
cases unless they were of an urgent nature.23 Notwithstanding these
constraints, the Commission from its third session entertains individual
complaints that do not reveal a series of violations. This approach, which has
bolstered the Commission's protective role, was mandated by its Rules of
Procedure.29 Other areas include "completing" the right to fair trial in Article
7,30 freedom of association,"' as well as furnishing content to the right to self-
determination.32 The Commission, drawing on precedents established by the

26. See Rules of Procedure of the African Commission on Human and Peoples' Rights,
Doc. ACHPR/RP/XIX (1996).

27. At para. 15 of the Report.
28. See Rachel Murray, Decisions by the African Commission on Individual

Communications Under the African Charter on Human and People 'sRights, 46 INT'L & COMP.
L.Q.412 (1997).

29. Commission Rules of Procedure adopted at its 2nd Ordinary Session.
30. In its 11 th Session, the Commission adopted a resolution on the Right to Recourse

Procedure and Fair Trial. It stressed, inter alia, that the right includes the right to be informed
promptly at the time of arrest in a language one understands of the reason for the arrest and of
any charges, the right to be brought before a judicial officer promptly after arrest or detention,
and the right to be brought to trial within a reasonable time or to be released. It further clarified
that the right to defense includes the right to have adequate time and facilities for the
preparation of that defense, and the right to communicate in confidence with counsel of one's
choice. The right also includes the right to free assistance of an interpreter at the trial.

31. Under Article 10(1) of the.Charter, the right to freely associate is conditional on the
requirement that one "abides by the law." See African Charter, supra note 14, art. I 0(1), at 554.
The wide powers of states to infract the right are limited by the Commission's resolution on the
right to associate (adopted at its I Ith session). The Resolution calls on states not to "enact
provisions which would limit the exercise of this freedom." (Fifth Annual Activity Report).
Further, state regulation of the right "should be consistent with the States's obligations under
the Charter."

32. See Communication 75/92 (Katangese People's Congress v. Zaire). The applicants
requested the Commission to declare the right of the Katangese "people" to complete sovereign
independence, thus enabling them to secede from Zaire (now DRC). The Commission in
rejecting the communication noted, inter alia, that self-determination can be attained in various
ways, including independence, federalism, confederalism, local government, and unitarism, and
that to allow an action incompatible with a state's territorial integrity, there must be "concrete

(Vol. 10:I1



UNIVERSAL HUMAN RIGHTS NORMS

European Commission of Human Rights and Inter-American Commission on
Human Rights, has made findings crucial to the realization of human rights in
Africa. These include continuity of obligations notwithstanding change of
government,3 the presumption of the truth of the allegations if government
fails to respond,34 and state responsibility for failure to act." In 1990, in order
to expand the Commission's reach throughout the continent, the Commission
adopted a resolution on the establishment of committees on human rights and
other similar organs at national, regional, and sub-regional levels.3" It also
encouraged member states to take appropriate measures to establish human
rights institutions. Other innovative steps which are gradually developing
include the Commission's sanctioning of provisional measures despite a lack
of specific reference to such measures in the Charter,37 on-site visits,38 special
rapporteur reports (e.g., one on summary and extra-judicial killings), and
follow-up actions.39

evidence of violations of human fights to the point that the territorial integrity of the state should
be called to question." Although the Commission may be criticized for setting a very high
standard (thereby "overprotecting" the territorial integrity of states at the expense of human
rights), it endeavored to give content to the right. From the findings of the Commission, it is
clear that the right operates not only against "colonizer" but against any oppressor. The right
extends to groups within a state who are persecuted and consistently denied a say in
government.

33. See Joined cases 83/92,91/93 Jean Yaovi Degli (On behalfofCorporalN. Bikagani,
Union Interafricaine des Droits de 1 'Homme, Commission Internationale de Juristes v. Togo.

34. See, e.g., Communications No. 25/89, 47/90, 56/91, 100/93, World Organization
Against Torture, Lawyer's Committee for Human Rights, Union Interafricaine des Droits de
I 'Homme, Les Temoins de Jehovah v. Zaire. Annex VIII, at 7 [hereinafter World Organization
Against Torture]. A similar approach is embodied in Art. 42 of the Regulations of the Inter-
American Commission on Human Rights.

*35. In Communication 74/92, Commission Nationale des Droits de 1 homme et des
Libertes v. Chad, the Commission found that if a state neglects to ensure the rights in the
Charter, this constitutes a violation. The Commission found that Chad was in violation of the
Charter for failing to provide security and stability in the country, thereby allowing massive
violations to take place. This approach, similar to that taken in the Inter-American decision in
Velasquez Rodriguez (I. - A. Court H. R, Series C: Dec. & Jug. No. 4, 1988) has expounded
on the state duty provided for under Art. I of the Charter.

36. See Annex VIII, II HUM. RTS. L.J. 401 (1990).
37. See Rule Ill of the Commission's Rules of Procedure (1996).
38. For example, the Commission has sent missions to Nigeria, Sudan, Burundi,

Mauritania, and Rwanda.
39. For instance, the Commission's endeavor to verify that its recommendations to the

state to remedy violations (e.g., release of victims), has been complied with by bringing the file
to the defendant state during a commission's mission. See Case 87/93, The Constitutional
Rights Project in re Zamani Lakwot & 6 Others v. Nigeria.

1999)



IND. INT'L & COMP. L. REv.

IV. STRENGTHS AND CHALLENGES OF THE AFRICAN HUMAN RIGHTS

SYSTEM: AN APPRAISAL

On the one hand, the Charter, when compared to her sister systems in
Europe and the Americas, shows some advantages in some respects both in its
substantive and procedural provisions. For example, the Charter is the most
comprehensive instrument in existence that embodies under one roof the three
dimensions of rights; namely, civil and political rights; economic, social, and
cultural rights; as well as people's rights, sometimes also called "solidarity or
collective"rights, which an individual can only enjoy in a collective sense as
a member of the community. By so doing, the Charter endeavors to give
effect to the indivisibility and interdependence of human rights. Similarly, its
inclusion of solidarity rights is an innovation that undoubtedly constitutes an
essential development in the conceptualization of human rights in general.
The Charter also provides more liberal access to its procedures than other
international human rights instruments. Unlike the two regional systems
which require state declaration of recognition of the competence of the
implementing organs to receive petitions, the Charter does not request such
declaration, and opens the doors for both individuals and non-governmental
organizations (NGOs) whether national, African, or international, to file
petitions. Apart from conferring quasi-judicial functions, the Charter bestows
upon the Commission a promotional mandate that appears to surpass the
mandates of the European and Inter-American Commissions.

On the other hand, the African system faces various challenges which
have made it lag behind the two systems in Europe and the Americas. First,
the adoption of the African Charter with its unabashedly "Africanist
Philosophy"4 has fueled the raging debate in international human rights
circles on the universal pluralistic nature of human rights. It has been a
question of much controversy as to whether the African Charter was meant to
pursue a trend towards "African Culturalism" or to enforce "universal" human
rights norms." It has also been argued that some positions are taken in
regional and international human rights instruments which conflict with
African cultural norms. These controversies have served as stumbling blocks
for the African system to serve as a vehicle for the realization of universal
norms. However, as already noted herein, like the other regional human rights
systems, the African system has its own issues and concerns-which
influenced its innovations and emphases. This notwithstanding, like the other

40. In the Preamble, the Charter bases itself on "the virtues of [African] tradition and the
values of African civilization" and that the duty to promote human rights has to take into
account "the importance traditionally attached to these rights and freedoms in Africa." See
African Charter, supra note 14, at 551-52.

41. See Makawu wa Mutua, The Banjul Charter and the African Culural Fingerprint: An
Evaluation of the Language of Duties, 35 VA. J. INT'L L. 339 (1995).

[Vol. 10O: 1



UNIVERSAL HUMAN RIGHTS NORMS

regional systems, it was inspired by universal norms as enunciated in the
UDHR and other international human rights instruments. The innovative
aspects of the Charter merely enrich the human rights corpus and are not
intended to detract from universal human rights norms. The Charter deferred
to "universalism" in the Preamble42 and in Articles 60 and 61.' As seen
above, in various cases, the African Commission has adopted doctrines
established in the case law of other international human rights institutions.

Second, the Charter omits a multiplicity of rights and fails to interdict
certain violations. For instance, the Charter does not protect the right to
privacy (i.e., the right to respect for private and family life, home, and
correspondence), nor interdict forced or compulsory labor. There is no right
to vote and be elected in periodical elections by secret ballot, nor does the
Charter embody democratic concepts such as universal suffrage and free and
fair elections." The right of a national not to be expelled and the right to

42. One of the objectives of the Charter is to "promote international cooperation having
due regard to the United Nations and the Universal Declaration of Human Rights." See African
Charter, supra note 14, art. 45(3), at 561. In the Preamble, African states reaffirm "the
adherence to the principles of human and people's rights and freedoms contained in the
declarations, conventions and other international instruments adopted by the OAU, the
Movement for Non-Aligned Countries and the United Nations." Id.

43. Under Article 60,
(t]he Commission shall draw inspiration from international law on human and
peoples' rights, particularly from the provisions of various African instruments
on human and Peoples' rights, the Charter of the United Nations, the Charter of
the Organization of African Unity, the Universal Declaration of Human Rights,
other instruments adopted by the United Nations and by African countries in the
field of human and peoples' rights as well as from the provisions of various
instruments adopted within the specialized Agencies of the United Nations of
which the parties to the present Charter are members.

African Charter, supra note 14, art. 60, at 565.
Under Article 6 1,
[t]he Commission shall also take into consideration, as subsidiary measures to
determine the principles of law, other general or special international
conventions, laying down rules expressly recognized by member states of the
Organization of African Unity, African practices consistent with international
norms on human and peoples' rights, customs generally accepted as law, general
principles of law recognized by African states as well as legal precedents and
doctrine.

Id. art. 61.
44. In its 19th session, the Commission adopted a resolution on "electoral process and

participatory governance." Applauding elections in Benin, the Sierra Leon, and the Comoros
as part of the transition to democratic rule in these countries, the Commission asserted that
elections are the only means by which people can elect democratically the government of their
choice in conformity with the Charter. It called on governments to take measures to ensure the
credibility of electoral processes, and stressed the duty of states to provide the material needs
of the electoral supervisory bodies. Ninth Annual Activity Report, Annex VII at 9.

1999]



IND. INT'L & COMP. L. REv.

marry are omitted, while the right to fair trial" suffers various shortcomings.
The many claw-back clauses tend to water down the contents of the

rights and give wide powers to states to derogate from their human rights
obligations.' The Charter also omits a derogation clause.47

The rather open access to communications is seriously undercut by a
very lengthy procedure which communications have to undergo. Under
Article 58 of the Charter, communications have to be brought to the
knowledge of the state concerned. In the past, the Commission has interpreted
the provision restrictively, deferring consideration of the case until the state
reacted. The Commission's recent approach of presuming the truth of
allegations from the silence of government and its proceeding to consider
petitions notwithstanding a state's silence must be saluted.

The lack of publicity of the Commission's work is a ghost that has

45. The Commission has tried to remedy some of the omissions in its resolution on Right
to Recourse Procedure and Fair Trial. See supra note 29.

46. Many of the clauses embody nebulous and open-ended clauses, and are not qualified
as "necessary in a democratic society" as found in the European and American Conventions.
See Arts. 8-11 of the ECHR, and Arts. 15-16 of the AMCHR. For instance, some rights are to
be enjoyed "subject to law and order,""within the law," if one "abides by the law." Some rights
may also be restricted for the protection of "national security," "public order," or "public
health." It is argued that although some of the phrases used are found in other international
instruments, the African Charter "claw-back" regime tends to overemphasize the "exceptions"
and gives wide powers to states at the expense of the rule. However, the developing
jurisprudence of the African Commission tries to insist on the effective enjoyment of the rights.
See Case 10 1/93, Civil Liberties Organization, in re Nigeria Bar Association v Nigeria, 9 - 10.

47. The Charter, in Part II (dealing with duties) merely mentions "collective security" but
not "public emergency." See African Charter, supra note 14, art. 27(2), at 558. In view of the
difference in character, scope, and circumstances in which limitations and derogations may be
imposed, it is untenable to attempt to argue that the many limitation clauses (claw-backs) make
a derogation clause unnecessary. For this argument, see, for example, Rose M. D'Sa, Human
and Peoples 'Rights: Distinctive Features ofthe African Charter, 29 JOURNAL OF AFRICAN LAW
72, 75-76 (1985). As to the nature of limitation and derogation clauses, see SUBRATA ROY
CHOWDHURY, RULE OF LAW IN A STATE OF EMERGENCY (1989) (presenting an exhaustive and
scholarly examination of the International Law Association's Paris Minimum Standards of
Human Rights Norms in a State of Emergency that was promulgated in 1984); Gerald Erasmus,
Limitation and Suspension, in RIGHTS AND CONSTITUTIONALISM, (Dawid van Wyk et al. eds.,
1994); The Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights 1984, reprinted in 7 HuM. R"S. Q. 3-88
(1985) (consisting of commentary and working papers on limitation provisions and derogation
clauses as compiled by a group of international law experts); JAIME ORAA, HUMAN RIGHTS IN
STATES OF EMERGENCY IN INTERNATIONAL LAW (1992) (analyzing the main principles
regulating human rights in emergencies as contained in the derogation clauses and in general
international law). The Commission has held that the absence of a derogation clause in the
Charter means that the Charter as a whole remains in force even during periods of armed
conflict. See Communication 74/92, Commission Nationale de l'homme et des Libertes v.
Chad, AHG1207 (XXXII) Annex VIII at 12). In practice, this may be impracticable; a
derogation clause is necessary to regulate derogations.

48. See Communication No. 25/89/47/90, 56/91, 100/93, supra note 34.

[Vol. 10: 1



UNIVERSAL HUMAN RIGHTS NORMS

dangerously assailed the human rights project. Under Article 59(1) of the
Charter, all measures taken within the provisions of the Charter (on the
procedure of the Commission) shall remain confidential until such a time as
the Assembly of Heads of States and Government shall otherwise decide.
Barring the Commission from reporting individual cases, the defendant states,
or the stage reached by individual cases, denies vital protection to victims of
human rights violations. Under Article 59(3), "[t]he report of the activities of
the Commission shall be published by its Chairman after it has been
considered by the Assembly of Heads of State and Government.",49 It is
unfortunate to vest a power in the Assembly to "veto" the Commission's
publication of its annual report. The Commission's Rules of Procedure
presuming that publication is permitted unless directed otherwise is
commendable."O

Until 1998 with the adoption of an Additional Protocol to establish a
court,' the African Charter did not create a court of human rights. Only a
commission was put in place, and given a mandate with a number of lacunas.

V. THE WAY FORWARD: CONCLUSIONS AND RECOMMENDATIONS FOR

REINVIGORATING THE AFRICAN SYSTEM

The adoption of the African Charter constitutes an important input in the
human rights revolution on the African continent. Over the years, within the
African system, like the two regional systems, some steps have been taken in
the direction of complementing and reinforcing the global system in the
realization of universal norms, while at the same time responding to the
particular problems in the region.

However, there is a need for further normative, institutional, and
procedural reforms to make the system more effective. There is a need to
adopt additional protocols to supplement the Charter and add the rights
omitted. Although the Commission has tried to expound on the protections
in the Charter, this is not enough.

The Charter also needs revisions in various respects. There is a need to
further streamline and reinvigorate the Commission's mandate. Provisions
that inhibit the publicity of the Commission's work should be revised.
Although the Commission was created by the OAU, its mandate should be

49. African Charter, supra note 14, art. 59(3), at 564.
50. See Rule 77 of the Commission's Rules of Procedure, supra note 26.
51. This Protocol is not yet in force. The African system is in the process of creating a

court of human rights. See Draft Protocol, supra note 19, at 953. Under Article 34(3) of the
Protocol, "[t]he Protocol shall come into force thirty days after fifteen instruments ofratification
... have been deposited." Id. at 960. The competence of the Court to receive petitions is
limited to those states that ratify the Protocol and also file a declaration accepting the
competence of the Court. See id. art. 34(6), at 960.

1999]



IND. INT'L & COMP. L. REv.

expanded so that it becomes more accountable to the people rather than to the
Heads of State and Government. The Commission's close association with
the OAU is necessary-inter alia, the OAU serves as an outlet of the
Commission and forms the medium through which the Commission's
activities are brought to the attention of the people and the leaders. However,
the Commission must remain independent from the Heads of State and
Government-the members of which are often the targets of human rights
claims-and the OAU must not impose restrictions that hinder or compromise
its work. The Commission's financial dependence on the OAU hampers the
Commission's general activities. The OAU's considerable control over the
activities of the Commission and its say as to what activities the Commission
may undertake need to be revised. In addition, vesting final decision making
in the OAU Assembly of Heads of State and Government and not in the
Commission, needs revision. The current working relationship between the
Commission and the Assembly gives powerful states the ability to moderate
or even silence the findings of the Commission.

Impartiality and independence of action are central to the effective
functioning of an organ charged with the protection of human rights. Indeed,
elected members of the Commission must take an oath of impartiality. 2

However, the election of ambassadors or other officials from
governments-governments that are the targets of human rights claims-to the
Commission, renders the impartiality and independence of the Commission
illusory and should be revised.

There is a need to address the various claw-back clauses that tend to
water down the contents of the guarantees. A general limitation clause would
be ideal. A derogation clause should be added to regulate state action before
and during emergencies.

There is a need to establish additional bodies, particularly a court to
complement the Commission. There is an urgent need for ajudicial organ in
the nature of a court to undertake effective adjudication of complaints, render
enforceable judgements, offer remedies to victims, and make states more
accountable for violations of human rights. Like the Commission, the court
must be an independent institution and its activities must not be inhibited by
the OAU.

Since its inception, the Commission has experienced serious financial
constraints due to poor funding from the OAU and has had to rely on funding
from external sources. The Commission should consistently call on the
member states to deliver and respect their obligations under the Charter,
notwithstanding the financial constraints they face. African governments have
perpetually relegated meeting their human rights obligations at the periphery.
The Commission must consistently fight this vice.

52. See African Charter, supra note 14, art. 38, at 560.

[Vol. 10:1