Evaluating the African Charter, 40 years on

The month of June marks the 40th anniversary of the African Charter on Human and Peoples’ Rights. Although many of its promises have been honored by breach rather than compliance, the African Charter came into being as an embodiment of African States’ conviction of “their duty to promote and protect human and peoples’ rights and freedoms”. 

The African Charter, which was adopted during the 18th ordinary session of the assembly of heads of state and government of the Organisation of African Unity (OAU) on 27 June 1981 in Nairobi, Kenya, is more than a regional articulation of internationally recognised human rights. It is a landmark human rights treaty of historical importance both at continental and global levels. Continentally, it is the first legal instrument to pierce the veil of sovereignty that excluded any scrutiny of how independent African states treated the people in their jurisdiction. 

One of the drafters of the African Charter, Gambian jurist Hassen Jallow, said: “The very notion of creating machinery for the promotion and protection of human rights was itself nothing less than revolutionary in a continent where and at a time when the African states were ultra-jealous of their national sovereignty even and brooked no interference in what they regarded as their internal affairs.” 

Inspiring the plethora of human rights norms that have since then been elaborated at the continental and sub-regional levels and achieving universal ratification, the African Charter enjoys not only a status of customary international law but also that of being akin to basic law of the continent. At the global level, it contributed to the international corpus of human rights. It did so both by giving equal legal status to civil and political rights and economic and social rights, enshrining the collective rights of peoples and the duties of individuals.  

Like other human rights treaties, the main target of the African Charter is the state. The experience of the grievous human rights violations to which Africans in independent states were subjected prior to the adoption of the charter was a clear testament that the misuse and abuse of the authority of the state represents a threat to the enjoyment of human rights and freedoms. The African Charter recognises the state as a major threat to human rights. As it was at the time of the adoption of the Charter, today this is evident from the human rights violations routinely perpetrated by governments, including in some cases those involving mass atrocities. It thus imposes legal obligations on the state. 

But, for the African Charter the misuse and abuse of the power of the state is only one (but never the only) source of threat to human rights and fundamental freedoms. As I observed in my opening statement for the 28th ordinary session, apart from the burden of bad governance, the trinity of burdens militating against the rights and dignity of the peoples of Africa include the burden of history (of slavery, colonialism and apartheid) and the burden of unjust international power relationship. The African Charter is thus novel in its recognition of these additional conditions that inhibit the peoples of the continent from having access to full measure of their rights and freedoms. 

With respect to the burden of the legacies of the systematic and gross human rights violations of the past (slavery, colonialism and apartheid), the African Charter expresses the undertaking of African states “to eliminate … neocolonialism” and articulates the collective rights of peoples, including the right to self-determination in its expansive form. Accordingly, following the approach to human rights advanced by pan-Africanist and anti-colonial thinkers and political leaders, what Adom Getachew called “worldmakers” in her landmark study Worldmaking after Empire: The Rise and Fall of Self-determination which includes the likes of Nnamdi Azikiwe, WEB du Bois, Kwame Nkrumah and Julius Nyerere, the African Charter expressed its recognition that “the reality and respect of peoples’ rights should necessarily guarantee human rights”. 

In making the collective rights of peoples the foundation on which the edifice of human rights stands, the African Charter echoes Nkrumah’s argument, as quoted in Getachew, that peoples’ rights as embodiment of freedom from domination and external dependence enable “the establishment of a democracy in which sovereignty is vested in the broad masses of the people”, so that they “might be able to find better means of achieving livelihood and asserting their rights to human life and happiness”.

In one of the landmark cases, SERAC v Nigeria, the African Commission on Human and Peoples’ Rights, the human rights body established by the African Charter, thus remarked that the origin of some of the provisions of the African Charter, in the particular instance Article 21, is to be traced to “colonialism, during which the human and material resources of Africa were largely exploited for the benefit of outside powers, creating tragedy for Africans themselves, depriving them of their birthright and alienating them from the land”. On how this experience affects people in present day Africa, the commission stated that the “aftermath of colonial exploitation has left Africa’s precious resources and people still vulnerable to foreign misappropriation”.

In stating in the preamble that the peoples of Africa “are still struggling for their dignity and genuine independence”, the African Charter is expressing its recognition of the adverse impact not only of the past but also the burden Africa bears from the unjust power relationship in the international system. It thus affirmed that “it is henceforth essential to pay particular attention to development … and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”. These preambular statements and the substantive rights relating in particular collective rights of peoples expand the conception of injustice undermining the full enjoyment of human rights to encompass the ways in which the international system frustrates the rights of peoples to freely determine their economic and social development according to the policy they have freely chosen as envisaged in Article 20 of the African Charter.

Today, as we mark the 40th year anniversary of the African Charter, there is nothing more than the Covid-19 vaccine inequity that vividly illustrates how this power architecture of the international system brings peoples in Africa, as in other parts of the developing world, to an existential crisis. The third wave of the pandemic is gathering pace, with more devastating effects than previous waves. It claims the lives of an increasing number of peoples including the highly limited skilled healthcare workers of limited access to the vaccine and deals a serious blow to the economies of the continent. African countries, like others in the Global South, are witnessing that their concerns — that the protection given to pharmaceutical companies under the treaty on intellectual property rights will prevent them from protecting the right to health of their citizens — is being born by events. 

Together with major European countries, pharmaceutical companies are blocking the temporary waiver of the application of patent protection to Covid-19 vaccines, key for making the generic production of these vaccines on the continent for ending the current artificial scarcity. As Strive Masiyiwa, chief of AU’s vaccination acquisition task team pointed out, Africa’s inability to access the vaccine is “a product of the deliberate global architecture of unfairness”.   

Forty years after its adoption Africa is nowhere near achieving the promises of the African Charter. That Africa finds itself in this position is an indictment of its incredible lack of progress, stagnation or even worse regression. The breadth and depth of the challenges facing the people of Africa today are clear testament that the African Charter remains, as much, if not more, important today as it was at the time of its adoption.

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Solomon Dersso
Dr Solomon Ayele Dersso is a legal scholar specialising in human rights and transitional justice and an analyst of African affairs. He is also the chairperson of the African Commission on Human and Peoples’ Rights and spearheaded the drafting of both the AU Transitional Justice Policy and the African Commission’s Study on Transitional Justice.

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