La Mise En Œuvre De La Charte Africaine Des Droits De L Homme Et Des Peuples Par Les Etats

The Implementation of the African Charter on Human and Peoples’ Rights by the States parties

DR. Rachidatou ILLA MAIKASSOUA

October 2011

The present symposium offers a twofold perspective. It is aimed,on the one hand, atreviewing 30 years of application of the African Charterand, on the other hand, at assessing current challenges and future prospects in relation to the promotion and protectionof human rights in Africa.

Ourcontribution focuses on the former aspect; however, it does not purport to provide an exhaustive exposition of thetheme.An initial study of this kind was carried out on the subject in 2004.[1] It remains, however, that at the present time it is still very difficult in many ways to assess the precise impact of theAfrican Charteron domestic law.Therefore, this study will restrict its focus to a selective overview of the impact that the instrument hashad on domestic law in certain ContractingStates.

TheAfrican Charter on Human and Peoples’ Rights (hereinafter, theAfrican Charter) was adopted on 27 June1981 in Nairobi, Kenya. It entered into force on 21 October 1986,following its ratification by the 26thState. The Charter has now been ratified by 53 out of the 54 African Union member States.[2]It comprises a set of 68 articles and twoadditionalProtocols:the first being the Protocol on the Establishment of an African Court on Human and Peoples’ Rights,adopted in 1998, and the second, the Protocol on the Rights of Women in Africa, adopted in 2003.[3]These two protocols were intended as complements to the Charter: theformer focusing on the organization, running and procedures of the Africanmechanism (Protocol on the Establishment of an African Court on Human and Peoples’ Rights), whilst the latter provided a complement to the list of rights guaranteed by the African instrument (Protocol on the Rights of Women).

In this article, domestication of the African Chartershall be understood to cover the process ranging from receipt of the African protectioninstrument to actual observation of itsimpact andconsequences on domestic law.This requirementdirectly ensures from Article 1of the Charter, under whose terms: ‘The Member States of the Organization of African Unity parties to the present Chartershall recognize the rights, duties and freedoms enshrined in this Chapter and shallundertake to adopt legislative or other measures to give effect to them.’It is therefore up to the Contracting Statesto give effect to the provisions of theAfrican Charter.They are bound to take action by adopting all appropriate measures, be they legislative, administrative, social, economic, educational or judicial, etc.to ensure the enforcement of the rights recognized by theAfrican Charter. To this end, they are endowed with freedom of actionon their territory.

This studytherefore intends to review the status of the States’ undertakings in terms of theircompliance with the African Charterin generaland the decisions of the African Commissionon Human and Peoples’ Rights (hereinafter the African Commission) in particular. It shall reveal, through a few illustrationsand in the light of the practices that can be observed in certain States parties,that, although the different provisions of African Charterhave given rise to considerable normative production (I), enforcement of the decisions handed down by the Commission is quite limited(II).

I.TheAfrican Charter:an abundant source ofnormative production

TheStates partiesto theAfrican Charterhave not all remained passive in the faceof the obligations arising from the instrument. On the contrary, they have played a ‘proactive’role in itsnormative application, which can take on a variety of legal forms. Significantly,the States’ practicesbring two categories of measures to light: those relating to the domestication of the African instrument into national law (A) and those relating to the adoption of legislative or other types of measures (B).

Nationalmeasures for the domestication of the Charter

The purpose ofthe Charteris to establish obligations for theContracting Statesthat are aimed at instituting sweeping protection for human rights. At the national level, States partiesenforce treaties through measures of domestication. In this regard,it should berecognized that States parties’domestic mechanisms forhuman rights promotion and protection play an important role in the domestication of the African instrument. Indeed, the Charter’s incorporation into domestic law is key to its implementation in theStates. This obligation hasbeen asserted by theAfrican Commission. In 1989, theAfrican Commission,meeting in its fifth ordinary session,adopted aresolution on the effective incorporation of theAfrican Charterinto the domestic legal systems of the States parties.[4]Subsequently,in 1996, a second Resolution wasadopted during its 19th session,[5] stressing the role of lawyers and judges in the incorporation and application of the Charter. Finally,in the framework of the recommendations formulated in its concluding observations, the Commission has continued to speak out in favour of domestication by urging States partiesthat had yet to do so to incorporate the African instrument into their domestic systems.[6]

Overall, the practices of theStates partiesare not homogeneous, but vary according to their legalsystems. Three possible cases can be observed, according to whether theContracting Statessubscribe to a monistic or dualistic approach or whether they have their own specificities.

A large number ofStates partiesto the Charter subscribe to a monistic approach, which is to say that they‘areprepared to enforce international treaties immediately without requiring a specialprocedure for the incorporation of treaties into the domestic legal system’.[7]For the proponents of the monistic approach, the domestication of the African Charteristherefore automatic upon itsratification by the States. This is the case in most of the Francophone countries of Africa, where, once the African instrument is duly signed and ratified, itimmediately takes effect upon official publication. However, theCharter’s position in the hierarchy of norms in domestic law varies from one State to another. While certainmonistic States recognize the African instrument as having supra-constitutional authority, i.e. a rank above that of their national constitution,others only recognize it as having supra-legislative status.[8]

For numerous reasons, the constitutionalization of the rights guaranteed bytheAfrican Charteris a matter of vital interest for the protection of human and peoples’ rights. Thefirst of these reasons is that, by incorporating the African Charterinto the constitution, the constituent explicitly affirms its will to integrate the Charter’s provisions into the domestic legal system. Thesecondisthat the technique allows judges to cite it indetermining applicablelaws and this empowers them to assert the prevalence ofthe Charterover laws that contradict it.Finally, the Charter becomes immediately enforceable in the domestic legal system when the Constitution clearly establishes the primacy of international law over national norms, whatever their legal status.[9]

In States that take a dualistic approach, theAfrican Charter, like all other international treaties, must be systematically incorporated into domestic law. Parliament must not only authorize the ratification of the treaty, but also translate international laws into domestic laws in order that the provisions of the treaty may beenforced within the domestic legal system; the normative effect of international provisions is transmitted from the treaty to the domestic ratification law.[10]In such States, theAfrican Charterhasthesame value as a national law.[11]

Alongside the monistic and dualisticsystems, there is also another domestication technique that proceeds through ratification.TheseStates present their own specificities, such as the absence of a constitution (Libya) or of a judicialsystem (Somalia) or the prevalence of religious law(i.e.Sharia). However, the act of ratification binds theState party to comply with the provisions of the Charter.

Adoption oflegislative or othermeasures

TheAfrican Chartermakes no distinction betweenthe different rights, which are all equally enforceable. The principle of the indivisibility andindependence of all human rights is effectively recognized by the African instrument. As stipulated by the Preamble: ‘it is henceforth essential to pay a particularattention to the right to development and […]civil and political rights cannot bedissociated from economic, social and cultural rights in their conception as well asuniversality and […]the satisfaction of economic, social and cultural rights is a guaranteefor the enjoyment of civil and political rights’.[12]

The reports submittedperiodically by the States partiesto theAfrican Commissionin compliance with the provisions of Article 62 highlight the diversity of the measures undertaken by the States to enforce the rights guaranteed by theAfrican Charter. A perusal of these reports shows that many of theStates partieshaveadopted legislative or other types of measures in keeping with Article 1 ofthe Charter. These reports state that theadoption ofthe Charterhas generated significant developments in terms oflegislation, regulations or justiceand that changes have been made to the dimensions, structure and content of the basic laws of certainStates parties. It appears that these normative changes are a direct consequence of the implementation of the Charter. For instance, in its 2nd to10th Periodic Report submitted in 2006, Tanzania states that‘some of the principles ofthe Charterhave been incorporated and therefore domesticated in the followinglegislations’.[13]

However, itis important to stress that, although all national legal systems recognize the Charter, the solutions they use for its enforcement are varied. The implementation of Charter provisionstherefore differs depending on theState.

The measures adopted by theStates partiesessentially focus on compliance withexplicitobligations that are clearly formulated in the African Charter and the Protocol on the Rights of Womenin Africa.All domestic provisionsadopted in the framework of human rights protectionstem from States’ undertakings to adopt legislative measures to give effect tothe Charter.Therights protection objectivesought by theAfrican Charter constitutesa means for legislators to enhance their jurisdiction in terms of legislation on human and peoples’ rights. Thelegislators’ jurisdiction notablyincludes implementation of normative decisions handed down by the regulatory body, which constitute norms with which they mustcomply when drafting new laws.

Resolutions,described as‘normative’because they are intended to bring about changes in domestic law, have sometimes influenced legislators in multiple areas.These specifically includeresolutions on the right to a fair trial and the Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, which haveconsiderably inspirednational legislation. Indeed, many periodic reports contain information on measures implemented on the national scale. One of the most pertinent of those was the draft bill on prisons,adopted in 2006, whicheliminated corporal punishment in the prisons ofUganda.[14]Similarlegislation has been adopted in Egypt, notably with the adoption of new provisions to meet the requirements ofArticle 5 ofthe Charter.[15]In Ethiopia,theFederal Prison Commission Establishment Proclamation (Proclamation No. 365/2003)states that prisoners have the right to be treated with conditions of respect for human dignity.[16]The same applies in Kenya where, in 1997, the government enacted a law expressly prohibiting the use of torture by the police to obtain information and evidence.[17]

Legal interpretation of all of these material changes, which are increasingly prevalent, points to the conclusion that the African Charterhas become a normativereference in terms of human rights inAfrica. That said,the implementation of the Chartercannot be reduced solely to the adoption of constitutional orlegislative provisions, which have been shown,in some regards,to be insufficient to enable individuals to fully enjoy the rightsenshrined in the Charter.In fact, a study of the implementation of theAfrican Charterreveals a striking paradox:a divide between the ambition of the texts and the failings in their implementation, and even limited results in terms of the implementation of the decisions of the Commission.

II.Limited implementation of the decisions of theAfrican Commission

Within the framework of the Africansystem, the obligation of compliance with the decisions of theAfrican Commissionarises from the obligation contained in Article 1 of theAfrican Charterwhich obliges States partiesto adopt allnecessary measures to give effect to the rights, duties and freedomsenshrined inthe Charter.[18]Similarly,theAfrican Commissionconsiders that the ratification ofthe Charter implies an undertaking to‘cooperate with the [African] Commission and to abide by all decisions taken by the latter’.[19]In other words, it is up to the national authorities to implement the decisions of the African Commission. Similarly,theresolution on the importance of implementing the recommendations of the African Commission on Human and Peoples' Rights by States partiesestablishes that‘State Parties in ratifying without any reservation, the African Charter on Human and Peoples' Rights have thus agreed to accept the authority and the essential role of the Commission in the promotion and protection of Human and Peoples' Rights throughout Africa’and, accordingly, the Commission ‘CALLS UPON all state parties to the African Charter on Human and Peoples' Rights to respect without delay the recommendations of the Commission’.Consequently,as compliance with its decisions was considered a corollary to recognition of theCommission’s jurisdiction, States partieswere bound to comply pursuant to their conventional undertaking. This meant that States parties had very specific obligations in relation to the domestic authorities.

However, it behoves usto note that the practical implementation of the decisions of the Commissionby the States partieshas been relatively sketchy depending on whether it takes place in the context of a dispute(B) or not (A).

Partial implementation of ‘decisions’ not relating to disputes

By drafting resolutions and concluding observations, the Commissionrespectively helps to compensate for gaps left by the Charterand draws attention to the insufficiencies that can be seen in many periodic reports.Resolutions and concluding observations may also be considered a major source ofinterpretation of theprovisions of theAfrican Charter, which confers on them a particular authority. Notwithstanding the fact that such ‘decisions’ have no binding effect, ‘theseinterpretations can be backed up by the objective nature of human rights. As the human person is at the heart of the concerns of the supranational bodies, itis difficult to imagine theStates (…) refusing to draw on the interpretations provided’. It can therefore be affirmed that theseinterpretations can, like the observations, benefit from an obligation of compliance to the extent that the States have an obligation ofresults. Thus, the interpretative authority can be reinforced and can lead States to adopt the necessary measures.

Although theAfrican Commission has devoted considerable normativeefforts to this area, adopting 183 resolutions in 25 years of activity–including an estimated 20 so-called ‘normative’ resolutions–in practice, only a handful of normative resolutions havehad positive impact on domestic laws. Specifically, the protection ofvulnerable persons and the fight against the HIV pandemic are the areas where governments have undertaken the mostconcrete actions. For instance, in order to comply with the Resolution of the Commission on the HIV/AIDSpandemic,[20]the Zambian[21]and Cameroonian[22]governments have developed national policies onthe fight against AIDS.Similarly, the resolutions of the Commission on the death penalty have led to positive results in Benin.Inits first step, the Beninese government stated that, ‘In a bid to implement the resolution of the African Commission onHuman and Peoples’ Rights and to give effect to the commitments made byBenin with respect to the right to life, the Government has initiated adebate on whether to abolish or maintain the death penalty.In fact, the eighth session of the National Human Rights ConsultativeCouncil, held from 23 to 25 February, 2004 in Cotonou was the forum forsuch debate.’[23]Subsequently, the Beninese government effectively ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, on the abolition of capital punishment, on18 August 2011, thereby joining Africa’s16 other abolitionist States. In another example, countries such as South Africa, Senegal and Benin[24]celebrate African Human Rights Day on 21st October of each year[25] in compliance with the very first resolutionadopted by the Banjul-based body.

Finally, it is important to mention the institutional changes that have taken place in most of the countries through the establishment of National Human Rights Institutions(hereinafterNHRIs)[26]or human rights ministries or directorates intended to give effect to theResolution on the Establishment of Committees on Human Rights or other Similar Organs at National, Regional or Sub-Regional Levels.[27]

Concluding observations, for their part, arise from an evaluationbased on a comparison of legislation and domestic practices with the requirements of the Charter.By adopting these observations, the Commission seeks to deal with certain gaps in terms of application identified in its reviews of State reports. In its observations, the Commission urges States to adoptappropriate behaviours.

In practice, the Commission has formulated some 72 concluding observations aimed at 37 States parties. With the exceptionsof Cameroon,[28]Uganda,[29] Rwanda[30]and the Democratic Republic of the Congo,[31]themajority of States partieshave failed to comply with the observations formulated by theAfrican Commission.

Low impact ofrecommendations issued on disputes

The disputes mandate of the Commission implies that it hands down rulings in law on alleged violations of theAfrican Charter. Generally, after finding a violation, the Commission issues recommendations informing the accused State of appropriate measures to remedy said violation. A concern with ensuring proper compliance with finding decisionshasled the control body to adoptdecisions couched in firm language, which read like actual injunctions since theyorder specific measures. They essentially comprise obligations of cessation, non-repetition andreparation.

Given that the States partiesare bound by the Charterprovisions, they are also bound by the case law of the Commission since ‘Under the Charter, therefore, States Parties are not given the option of recognising the substantive rights without accepting the jurisdiction of the African Commission, which was established to promote and protect those rights’.[32]In other words, States found to be in violation ofthe Charterare subject to a general obligation to comply with any decisions handed down.

Although the Commission has developed a dynamic and constructive body of case law on human and peoples’ rights over the last 25 years, it remains that the impact of its decisions on domestic legal systems is insignificant. Since its establishment, more than 400 cases have been submitted to the Commission. The Commission has reported 73 violations of the Charter involving 44 States parties. And yet, a very limited number of States have complied with itsrecommendations.