African Charter on Human and Peoples' Rights
Encyclopedia
The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights
and basic freedoms in the African continent
.
It emerged under the aegis of the Organisation of African Unity (since replaced by the African Union
) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution calling for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to those that already existed in Europe
(European Convention on Human Rights
) and the Americas
(American Convention on Human Rights
). This committee was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981 Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986– in honour of which 21 October was declared "African Human Rights Day".
Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples' Rights
, which was set up in 1987 and is now headquartered in Banjul
, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples' Rights
was to be created. The protocol came into effect on 25 January 2005.
In July 2004, the AU Assembly decided that the ACHP would be incorporated into the African Court of Justice
. In July 2005, the AU Assembly then decided that the ACHP should be operationalised despite the fact that the protocol establishing the African Court of Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session of the Executive Council of the African Union
meeting in Khartoum, Sudan, on 22 January 2006, elected the first judges of the African Court on Human and Peoples' Rights
. The relationship between the newly created Court and the Commission is yet to be determined.
As of 15 June 2009, 53 countries have ratified the Charter.
The preamble commits to the elimination of Zionism
, which it compares with colonialism
and apartheid, caused South Africa
to qualify its 1996 accession with the reservation that the Charter fall in line with the UN's resolutions "regarding the characterization of Zionism."
(Article 2 and 18(3)), equality (Article 3), life and personal integrity (Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel, inhuman or degrading treatment or punishment (Article 5), rights to due process concerning arrest and detention (Article 6), the right to a fair trial
(Article 7 and 25), freedom of religion
(Article 8), freedom of information and expression
(Article 9), freedom of association
(Article 10), freedom to assembly (Article 11), freedom of movement
(Article 12), freedom to political participation (Article 13), and the right to property
(Article 14).
Some human rights scholars however consider the Charter's coverage of other civil and political rights to be inadequate. For example, the right to privacy or a right against forced or compulsory labour are not explicitly recognised. The provisions concerning fair trial and political participation are considered incomplete by international standards. However, this is subject to argument as for example Article 5 of the Charter states "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of this legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited" also, Article 15 states "Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work" - which may be understood to prohibit forced or compulsory labour, although this is not explicitly mentioned. Similarly, the Charter does not explicitly recognise the right to vote as a means of political participation, but Article 13 states "(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. (2) Every citizen shall have the right to equal access to the public service of his country. (3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law."
(Article 15), the right to health
(Article 16), and the right to education
(Article 17). Through a decision by the African Commission on Human and Peoples' Rights, SERAC v Nigeria (2001), the Charter is also understood to include a right to housing
and a right to food
.
(Article 22), the right to peace and security (Article 23) and "a generally satisfactory environment" (Article 24).
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
and basic freedoms in the African continent
Africa
Africa is the world's second largest and second most populous continent, after Asia. At about 30.2 million km² including adjacent islands, it covers 6% of the Earth's total surface area and 20.4% of the total land area...
.
It emerged under the aegis of the Organisation of African Unity (since replaced by the African Union
African Union
The African Union is a union consisting of 54 African states. The only all-African state not in the AU is Morocco. Established on 9 July 2002, the AU was formed as a successor to the Organisation of African Unity...
) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution calling for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to those that already existed in Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
(European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
) and the Americas
Americas
The Americas, or America , are lands in the Western hemisphere, also known as the New World. In English, the plural form the Americas is often used to refer to the landmasses of North America and South America with their associated islands and regions, while the singular form America is primarily...
(American Convention on Human Rights
American Convention on Human Rights
The American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...
). This committee was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981 Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986– in honour of which 21 October was declared "African Human Rights Day".
Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples' Rights
African Commission on Human and Peoples' Rights
The African Commission on Human and Peoples' Rights is a quasi-judicial body tasked with promoting and protecting human rights and collective rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of...
, which was set up in 1987 and is now headquartered in Banjul
Banjul
-Transport:Ferries sail from Banjul to Barra. The city is served by the Banjul International Airport. Banjul is on the Trans–West African Coastal Highway connecting it to Dakar and Bissau, and will eventually provide a paved highway link to 11 other nations of ECOWAS.Banjul International Airport...
, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples' Rights
African Court on Human and Peoples' Rights
The African Court on Human and Peoples' Rights was a regional court that was created initially to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights....
was to be created. The protocol came into effect on 25 January 2005.
In July 2004, the AU Assembly decided that the ACHP would be incorporated into the African Court of Justice
African Court of Justice
The African Court of Justice was originally intended to be the “principal judicial organ of the Union” with authority to rule on disputes over interpretation of AU treaties....
. In July 2005, the AU Assembly then decided that the ACHP should be operationalised despite the fact that the protocol establishing the African Court of Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session of the Executive Council of the African Union
African Union
The African Union is a union consisting of 54 African states. The only all-African state not in the AU is Morocco. Established on 9 July 2002, the AU was formed as a successor to the Organisation of African Unity...
meeting in Khartoum, Sudan, on 22 January 2006, elected the first judges of the African Court on Human and Peoples' Rights
African Court on Human and Peoples' Rights
The African Court on Human and Peoples' Rights was a regional court that was created initially to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights....
. The relationship between the newly created Court and the Commission is yet to be determined.
As of 15 June 2009, 53 countries have ratified the Charter.
Content
The African Charter on Human and People's Rights followed the footsteps of the European and Inter-American systems by creating a regional human rights system for Africa. The Charter shares many features with other regional instruments, but also has notable unique characteristics concerning the norms it recognizes and also its supervisory mechanism.The preamble commits to the elimination of Zionism
Zionism
Zionism is a Jewish political movement that, in its broadest sense, has supported the self-determination of the Jewish people in a sovereign Jewish national homeland. Since the establishment of the State of Israel, the Zionist movement continues primarily to advocate on behalf of the Jewish state...
, which it compares with colonialism
Colonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
and apartheid, caused South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
to qualify its 1996 accession with the reservation that the Charter fall in line with the UN's resolutions "regarding the characterization of Zionism."
Civil and Political Rights
The Charter recognises most of what are regarded universally accepted civil and political rights. The civil and political rights recognised in the Charter include the right to freedom from discriminationFreedom from discrimination
The right to freedom from discrimination is an internationally recognised human right and enshrines the principle of egalitarianism. The right to freedom from discrimination is recognised in the Universal Declaration of Human Rights and enshrined in international human rights law through its...
(Article 2 and 18(3)), equality (Article 3), life and personal integrity (Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel, inhuman or degrading treatment or punishment (Article 5), rights to due process concerning arrest and detention (Article 6), the right to a fair trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
(Article 7 and 25), freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
(Article 8), freedom of information and expression
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
(Article 9), freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
(Article 10), freedom to assembly (Article 11), freedom of movement
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
(Article 12), freedom to political participation (Article 13), and the right to property
Right to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
(Article 14).
Some human rights scholars however consider the Charter's coverage of other civil and political rights to be inadequate. For example, the right to privacy or a right against forced or compulsory labour are not explicitly recognised. The provisions concerning fair trial and political participation are considered incomplete by international standards. However, this is subject to argument as for example Article 5 of the Charter states "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of this legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited" also, Article 15 states "Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work" - which may be understood to prohibit forced or compulsory labour, although this is not explicitly mentioned. Similarly, the Charter does not explicitly recognise the right to vote as a means of political participation, but Article 13 states "(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. (2) Every citizen shall have the right to equal access to the public service of his country. (3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law."
Economic, Social and Cultural Rights
The Charter also recognises certain economic, social and cultural rights, and overall the Charter is considered to place considerable emphasis on these rights. The Charter recognises right to workRight to work
The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
(Article 15), the right to health
Right to health
The right to health is the economic, social and cultural right to the highest attainable standard of health. It is recognised in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights.- Definition :...
(Article 16), and the right to education
Right to education
The right to education is a universal entitlement to education, a right that is recognized as a human right. According to the International Covenant on Economic, Social and Cultural Rights the right to education includes the right to free, compulsory primary education for all, an obligation to...
(Article 17). Through a decision by the African Commission on Human and Peoples' Rights, SERAC v Nigeria (2001), the Charter is also understood to include a right to housing
Right to housing
The right to housing is the economic, social and cultural right to adequate housing and shelter. It is recognised in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights.- Definition :...
and a right to food
Right to food
The right to food, and its variations, is a human right derived from the International Covenant on Economic, Social and Cultural Rights...
.
Peoples' Rights and Group Rights
In addition to recognising the individual rights mentioned above the Charter also recognises collective or group rights, or peoples' rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the state (Article 18), while "peoples" have the right to equality (Article 19), the right to self-determination (Article 20), to freely dispose of their wealth and national resources (Article 21), the right to developmentRight to development
The right to development was first recognized in 1981 in Article 22 of the African Charter on Human and Peoples' Rights as a definitive individual and collective right...
(Article 22), the right to peace and security (Article 23) and "a generally satisfactory environment" (Article 24).
Duties
The Charter not only awards rights to individuals and peoples, but also includes duties incumbent upon them. The duties recognise include those towards the family and state security, the duties to pay taxes, and to promote the achievement of African unity (Article 29). Article 27(2), which is included under the heading "duties", provides "The rights and freedoms of each individual shall be exercised with due regards to the rights of others, collective security, morality and common interest".See also
- African Commission on Human and Peoples' RightsAfrican Commission on Human and Peoples' RightsThe African Commission on Human and Peoples' Rights is a quasi-judicial body tasked with promoting and protecting human rights and collective rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of...
- African Court on Human and Peoples' RightsAfrican Court on Human and Peoples' RightsThe African Court on Human and Peoples' Rights was a regional court that was created initially to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights....
- African UnionAfrican UnionThe African Union is a union consisting of 54 African states. The only all-African state not in the AU is Morocco. Established on 9 July 2002, the AU was formed as a successor to the Organisation of African Unity...
- Human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
- Maputo ProtocolMaputo ProtocolThe Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, better known as the Maputo Protocol, guarantees comprehensive rights to women including the right to take part in the political process, to social and political equality with men, to control of their...
- List of Linguistic Rights in Constitutions (Africa)
- Linguistic rightsLinguistic rightsLinguistic rights are the human and civil rights concerning the individual and collective right to choose the language or languages for communication in a private or public atmosphere...