AUTHOR: EMMANUEL ABANIWO
Student (LL.B), Faculty of Law, University of Lagos.
Human rights are not texts of mercy and clemency, they are legally binding rights. For long, human rights have been described to be a western concept foreign to the Dark Continent. This has led to the obnoxious belief that the codification of rights in the African Charter on Human and People’s Rights is a waste of time, resources and a printed futility. This paper therefore seeks to establish that the underpinnings of human rights jurisprudence was not unknown to Africa before the coming of the Europeans, but was a practice among African people and the adoption of the African Charter was an attempt to conceptualize human rights from the African view and reflect the lead realities of the African people.
AN OVERVIEW OF HUMAN RIGHTS
Human rights are rights inherent to all human beings, whatever the nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. These rights are all interrelated, interdependent and indivisible. Equal and inalienable rights of all members of the human family are the foundation of freedom, justice and peace in the world.
The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the Analects of Confucius were the oldest written sources which addressed people’s rights, and responsibilities. However the idea of modern human rights began during the era of renaissance humanism in the early modern period. The European wars of religion and the civil wars of seventeenth-century England gave rise to the philosophy of liberalism and belief in human rights became a central concern of European intellectual culture during the eighteenth-century ‘Age of Enlightenment’. These ideas of human rights lay at the core of the American and French Revolutions which occurred towards the end of that century. Documents asserting individual rights, such the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791) are the written precursors to many of today’s human rights documents. However it took the catalysts of World War I and II to propel human rights onto the global stage and into the global conscience.
After the World War II, governments around the globe committed to establishing the United Nations (UN). This was to be an organization dedicated to the work of fostering peace and preventing conflict. The Charter that created the United Nations contained a powerful statement:
“We the peoples of the United Nations [are] determined…to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”
To advance this goal, the UN established an international Commission on Human Rights to create a document that, for the first time in history, would set out human rights for every person. The draft became the foundation for the Universal Declaration of Human Rights (UDHR) of 1948. In 1966, the UN Commission on Human Rights drafted two instruments to give legal force to the UDHR. One instrument was called the International Covenant on Civil and Political Rights. The second was the International Covenant on Economic, Social and Cultural Rights. Together with the Universal Declaration, they comprise the International Bill of Human Rights.
HUMAN RIGHTS IN AFRICA BEFORE THE INTERNATIONAL BILL OF RIGHTS
Human rights as a legal concept arrived in Africa relatively late. The United Nations (UN) System certainly contributed to the establishment of a human rights system in Africa, which has positively and indispensably impacted on the advancement of human rights and of justice. Yet it may be argued that human rights were present in African traditional societies before colonialism or the advent of the UN system although in a context quite unlike that of the West. According to Kéba Mbaya, President of the Senegal Supreme Court, “Traditional Africa does possess a coherent system of human rights, but the philosophy underlying that system differs from that which inspired [in France] the Declaration of the Rights of Man and of the Citizen.”
African scholar Claude E. Welch, Jr. agrees that recognition as well as “protection of human rights certainly existed in the pre-colonial period.” He identifies six major sets of rights in traditional society: “the right to life, the right to education, the right to freedom of movement, the right to receive justice, the right to work, and the right to participate in the benefits and decision making of the community.” He notes that in contrast to European conceptions stressing individual protection, African conceptions have emphasized collective expression.
Similarly, Yougindra Khushalani, former human rights officer of the United Nations Center for Human Rights in Geneva, argues that traditional Africa “does possess a coherent system of human rights,” including the right to life, the right to receive justice, the right to participation, freedom of religion, freedom of association, and freedom of expression. She suggests that human rights, whether individual or collective, were protected by custom rather than by written texts, but often involved well-defined procedures. She further argues that in traditional society, “besides having the right to select their leaders, Africans had the right to depose them and had methods and mechanisms for resolving issues affecting their societies as a whole.” She also asserts that traditional African society recognized freedom of movement, the right to work, and the right to education. These rights were not stated in adversarial terms, but were derived from the responsibilities of various members of the community. Thus, she concludes that traditional African society recognized the rights of both individuals and groups and through consensual procedures provided “an almost sacred protection” of fundamental human rights.
Chris Mojekwu reports that in traditional African culture all able-bodied members shared both the responsibility of maintaining and protecting their community and the right to use its resources. He argues that human rights as a basic concept was very much present in pre-colonial African society well before the eighteenth and nineteenth centuries. The difference was that the concept of human rights in Africa was fundamentally based on ascribed status. It was a person’s place of birth and his membership of a particular community that gave content and meaning to his human rights—social, economic, and political. One African proverb puts across the African sense of community. It says “Go the way that many people go; if you go alone, you will have reason to lament”.
Consideration of the African judicial process reveals that in several respects it contained a better guarantee of procedural fairness than its western counterpart. The ideal sought by African courts was a reconciliation of the disputants approved by the community. And, because reconciliation required a slow but thorough examination of any grievance, the parties had every opportunity to voice their complaints in a relatively sympathetic environment. The punitive measures used in curbing widely disapproved behaviors were also very effective although sometimes shameful and extreme. The Ibibio people in Akwa Ibom State, Nigeria, for instance, had zero tolerance for theft. The thief once caught in the act or convicted, would be stripped naked, his or her body rubbed with charcoal from head to toe and the object he or she stole would be given to him or her to carry around the village in broad day light. The sense of personal shame and the disgrace the thief has brought on himself or herself, family, relations and friends would be enough to discourage even the most daring thief. By comparison, the highly professionalized western mode of dispute processing seems designed to alienate and confuse the litigant.
Furthermore, in African traditional society, children’s rights were not a social issue; a child was a welcome addition to any household, where it would be assured of food, shelter and support. There were no formal mechanisms to protect children, but then none would have been necessary as abundant land, a subsistence economy, and the highly developed sense of generosity underwrote the support obligation. Similarly, gender discrimination was not an issue. Woman in pre-colonial Africa might have lacked some formal legal capacities, but they were respected members of the family and community, and they too were guaranteed lifelong support within the framework of the extended family.
HUMAN RIGHTS IN AFRICA AFTER THE INTERNATIONAL BILL OF RIGHTS
Despite the covenants in the International Bill of Human Rights, Africa longed for an autochthonous document that would conceptualize human rights from the African view and reflect the lead realities of the African people. The OAU Charter was the first regional instrument that dealt with the protection of human rights in the continent. However, it contained very little references to the concepts of human rights and made reference to the protection of human rights as well as general statements regarding the welfare and well-being of Africans. With both the domestic and international pressure, African leaders adopted in 1986 the African Charter on Human and People Rights.
When the African charter came into operation on 21 October 1986, it was considered a miracle, an extraordinary and powerful instrument of liberalization, and an unprecedented event in the history of the continent. The African Charter came as a rebellion against colonial tendencies. It portrayed Africa’s readiness to move from human wrong to human rights.
THE UNIQUE FEATURES OF THE AFRICAN CHARTER AND ITS CONTRIBUTION TO INTERNATIONAL HUMAN RIGHTS LAW
The African Charter is the first international binding instrument to bridge the gap between civil and political rights and economic and social rights. It includes civil and political rights as well as specific economic and social rights. It has not separated socio-economic rights into a different instrument like in the European and American system.
Another feature of the ACHPR is that it breaks new ground by including individual duties. It consecrates a whole chapter to the duties of individuals, although this chapter only consists of three articles. In Articles 27, 28 and 29, the ACPHR recognizes explicitly the duty of the individual to the family, society, the state and the international community. Furthermore, the Preamble declare that ‘‘the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone’’. In Elias’s view, the African Charter seems to express another feature of the African conception of human right, whose basis would appear to be the nature of the several of social organization in traditional Africa, in which the human person is at the center of whole raft of rights and obligations.
A ‘claw-back’ clause, once again a distinctive feature of the African Charter, is one that permits, in normal circumstances, breach of an obligation for a specified number of reasons. The exercise of most of rights in the ACHPR is limited ab initio by clause of type: ‘’within the law’’, ‘‘provided that individual abides by the law…” (See for instance, articles 9, 10, 12, 13 (1) in the ACHPR).With regard to other systems, universal as well as regional they include derogation clauses. Derogation clauses are different from claw-back clauses in that they explicitly provide circumstances in which rights may be limited and define rights that are non-derogable and must be respected, even when derogation is persisted.
The African Charter has a much stronger focus on the subject of the rights of peoples or solidarity rights. It has the distinction of being the only international instrument to provide a detailed exposition of rights of people. It is the only regional instrument to incorporate these rights. By devoting six articles to the rights of the people, the African Charter seems to reflect a very special conception of human rights, according to which the reality and respect of people’s rights should necessarily guarantee human rights.
The express prohibition in the African Charter against discrimination according to ethnic group constitutes a major step for the continent as a whole because the realization of this right will lead to greater economic opportunity for those people not of the same kinship as the head of government.
The African Charter embodies some of the human rights practices of traditional African societies. For example, section 18 of the ACHPR passes across the African sense of community and family life. It provides that the family shall be the natural unit and basis of society and it shall be protected by the state which shall take care of its physical and moral health. It further describes the family as the custodian of morals and traditional values recognized by the community.
The enforcement machinery of the African system consists of the African Commission and the African Court of Human and People Rights. The jurisdiction rational personae in the African system are wider defined than some other regional systems for example, the European system. The European Court can sit only on cases submitting by victims while the African Court, through the channel of the African Commission, can received cases submitted by non-victims. Furthermore, the Jurisdiction ratione materiae of the European Court is restricted to matters concerning the interpretation and application of the Convention and the protocols thereto while the African Court has a wider jurisdiction encompassing the interpretation and application of the Charter, the Protocol and any relevant Human Rights instrument ratified by the states concerned. Also both systems provides for possibility to request advisory opinions from Courts. However, in the European system such opinions is limited on legal questions concerning the interpretation of the Convention and Protocols thereto while in the African system such opinions may be provided on any legal matter relating to the Charter and any other relevant Human rights.
This paper has been able to establish that human Rights are not unknown to Africans by identifying human rights practices in traditional African societies. It has further identified the unique features of the African Charter and its contributions to international human rights law. It is therefore safe to say that the codification of rights in the African Charter on human and peoples’ rights is not a waste of time and resources or a ‘printed futility’ but is an attempt to conceptualize human rights from the African view and reflect the lead realities of the African people.
Emmanuel Abaniwo is a 400 level law student of the University of Lagos and a member of the Mooting society. He has a fierce passion for Human rights, International law and Intellectual property. He is a Christian and a strong believer in the worth of the Nation. He enjoys good music, reading and playing the guitar when far away from anything legal.