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The African Charter on Human and Peoples’ Rights

Published online by Cambridge University Press:  27 February 2017

U. O. Umozurike
U. O. Umozurike*
Affiliation:
University of Calabar, Nigeria
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Extract

During the 1970’s human rights appeared to enjoy low esteem in Africa. The basic documents in inter-African relations were the UN and the OAU Charters. In its Preamble, as well as four substantive articles, the UN Charter refers to respect for human rights as a basis for international relations. The principles of human rights were further elaborated in the Universal Declaration of Human Rights of 1948 whose principles, in the view of some writers, have become part of customary international law. This Declaration was in turn elaborated on in the International Covenant on Economic, Social and Cultural Rights of 1966.

Type
Current Developments
Information
American Journal of International Law , Volume 77 , Issue 4 , October 1983 , pp. 902 - 912
Copyright
Copyright © American Society of International Law 1983

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References

1 UN Charter arts. 1, 13, 55, and 76.

2 Waldock, , Human Rights in Contemporary International Law and the Significance of the European Convention, 14 Int’l & Comp. L. Q., Supp. No. 11, at 1, 15(1965)Google Scholar; Bilder, , The Status of International Human Rights Law: An Overview, in 1 International Human Rights in Law and Practice 8 (rev. ed.Tuttle, J. 1978)Google Scholar.

3 African Research Bull. (Political, Social and Cultural Series) 5329B (1979).

4 For earlier conflicts between Hutu and Tutsi in Burundi and Rwanda, see Andemicael, B., Peaceful Settlement among African States: Roles of the United Nations and the Organization of African Unity 17–20 (UNITAR 1972)Google Scholar.

5 Umozurike, , The Domestic Jurisdiction Clause in the O.A.U. Charter, African Aff. (London), No. 311, April 1979, at 197 CrossRefGoogle Scholar; Okongwu, , The O.A.U. Charter and the Principles of Domestic Jurisdiction in Intra-African Affairs, 13 Indian J. Int’l L. 589 (1973)Google Scholar; Akinyemi, , The Organization of African Unity and the Concept of Non-Interference in Internal Affairs of Member-States, 46 Brit. Y.B. Int’l L. 393 (1972–73)Google Scholar; Lalive, J.-F., The Protection of Human Rights within the Framework of Existing Regional Organizations, in Human Rights in National and International Law 330 ( Robertson, ed. 1968)Google Scholar; Markovic, , Implementation of Human Rights and the Domestic Jurisdiction of States, in International Protection of Human Rights 47 ( Eide, A. & Shou, A. eds. 1968)Google Scholar; Welch, , The O.A.U. and Human Rights: Towards a New Definition, J. Mod. Afr. Stud., Sept. 1981 CrossRefGoogle Scholar.

6 Wani, , Humanitarian Intervention and the Tanzania-Uganda War, Horn Afr., No. 2; Umozurike, Tanzania’s Intervention in Uganda, 20 Archiv Völkerrechts 301 (1982)Google Scholar.

7 International Commission of Jurists [hereinafter cited as Int’l Comm’n Jurists], An African Charter on the Rule of Law (1961).

8 Bull. Int’l Comm’n Jurists, No. 29, March 1967, at 1.

9 UN Doc. E/CN.4/966, paras. 41–44 (1968).

10 The current President of the World Court, Judge T. O. Elias, was closely connected with the preparation of the background papers for the three conferences in 1961, 1967, and 1968 in his capacity as Attorney-General and Minister for Justice in Nigeria.

11 UN Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa, Monrovia, 10–21 September 1979, UN Doc. ST/HR/SER.A/4 (1979). See Commission to Study the Organization of Peace, 29th Report, Regional Protection and Promotion of Human Rights in Africa (1980) [hereinafter cited as Commission Report].

12 Young-Anawaty, , Human Rights and the ACP-EEC Lomé II Convention, 13 N.Y.U. J. Int’l L. & Pol. 63 (1980)Google Scholar.

13 The text approved by the OAU Ministerial Conference in the Gambia, January 1981, is reprinted in 21 ILM 59 (1982), and 27 Int’l Comm’n Jurists Rev. 76 (1981). See further Eze, , Prospects for International Protection of Human Rights in Africa, Afr. Rev., No. 1, 1974, at 79, 83 Google Scholar.

14 Convention on Human Rights and Fundamental Freedoms (European Convention on Human Rights), 213 UNTS 221, Art. 15(1).

15 E.g., §41 of the Nigerian Constitution.

16 Afr. Charter, Art. 20.

17 “Dr. Quatara [Executive Secretary of ECOWAS] explained that the quit order did not in any way conflict with any provision of ECOWAS protocol of free movement of persons within the community.” Nigerian Chronicle, Jan. 29, 1983, at 16. Dating back to the sub-Saharan droughts of a few years ago, the Nigerian Government allowed aliens without papers from neighboring states to flood the country. The unsettled situation in Ghana encouraged over a million Ghanaians to take advantage of the liberal immigration policy. The strain on the employment market and social services, and the increasingly high crime rate, at last forced the Government to reassess its national interests.

18 See also Eze, , ECOWAS and Freedom of Movement: What Prospects for Nigeria?, Nig. F., March 1981, at 22.Google Scholar

19 Afr. Charter, Art. 14.

20 Note of Aug. 3, 1938, reproduced in U.S. Dep’t of State, Compensation for Americanowned Lands Expropriated in Mexico (Inter-American Series No. 16, 1939).

21 UNGA Res. 1803 (XVII) (Dec. 14, 1962).

22 Afr. Charter. Art. 15.

23 Id., Art. 22(1).

24 Id., para. 2.

25 M’baye, Le Droit de développement comme un droit de I’homme, 5 Rev. Droits De l’Homme 523, 526 (1982).

26 UN Doc. E/CN.4/1334, para. 305 (1979). See also Development, Human Rights and the Rule of Law: Report of the Conference Held in the Hague, Especially Mestdagh, The Right to Development, at 143–74 (1981).

27 UNGA Res. 34/46 (Nov. 23, 1979).

28 U. Umozurike, Self-Determination in International Law (1972).

29 Afr. Charter, Art. 29.

30 Id., Art. 25:

States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.

31 Afr. Charter, Art. 45(l)(a).

32 Id., para. 3.

33 Id., Art. 52.

34 Id., Art. 59(1).

35 See, e.g., Esiemokhai, , Towards Adequate Defence of Human Rights in Africa, 13 Verfassung & Recht in Übersee 151, 156–57 (1980)Google Scholar.

36 Commission Report, supra note 11, at 30–31.

37 Afr. Charter, Art. 56; American Convention on Human Rights, Art. 44, 9 ILM 673 (1970).

38 European Convention, Art. 25(1).

39 Id., Art. 24.

40 American Convention, Art. 45.

41 Afr. Charter, Arts. 58 and 59.

42 The American Convention allows derogations “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party.”

43 Commission Report, supra note 11, at 31.

44 Afr. Charter, Art. 25.

45 Id., Art. 15(1).

46 American Convention, Art. 23.

47 Afr. Charter, Art. 10; American Convention, Art. 16(1); European Convention, Art. 11(2).

48 American Convention, Art. 26. See Alston, , Development and the Rule of Law: Prevention versus Cure as a Human Rights Strategy, in Development, Human Rights, supra note 26, at 31, 46–53 Google Scholar.

49 See Alston, supra note 48, at 98–107.

50 Afr. Charter, Art. 61. Contrast Statute of the International Court of Justice, which, in Article 38, directs the Court to apply: (a) international conventions; (b) international custom; (c) general principles of law recognized by civilized nations; and (d) as subsidiary means and subject to Article 59, “judicial decisions and the teachings of the most highly qualified publicists of the various nations.”

51 Under Article 63, the Charter will come into force 3 months after the Secretary-General of the OAU receives instruments of ratification or adherence by a simple majority of the OAU member states. At present, 26 will constitute such a majority, not counting the Saharawi Arab Democratic Republic.

52 As of October 1983, the Charter had been ratified by Congo, the Gambia, Guinea, Liberia, Mali, Nigeria, Rwanda, Senegal, Togo, and Tunisia.

53 Bello, , Human Rights: The Rule of Law in Africa, 30 Int’l & Comp. L.Q. 628, 634, 636 (1981)Google Scholar.

54 The Working Group on the Encouragement of Universal Acceptance of Human Rights was set up in 1979 by the Sub-Commission on Prevention of Discrimination and Protection of Minorities to consider, inter alia, what assistance the United Nations could give to encourage the ratification of human rights treaties. See further Weissbrodt, , A New United Nations Mechanism for Encouraging the Ratification of Human Rights Treaties, 76 AJIL 418 (1982)CrossRefGoogle Scholar.

55 See further Umozurike, U., International Law and Colonialism in Africa (Nigeria 1979)Google Scholar.