African Human Rights Law

Meaning of Human Rights

The term "Human Right" is comparatively of recent origin. But the idea of human rights is
as old as the history of human civilization.
Human rights are deeply rooted in the historical past. The history of mankind has been
firmly associated with the struggle of individuals against injustice, exploitation and disdain.
Human beings are born equal in dignity and rights. These are moral claims which are
inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of
caste, color, faith, and place of birth, sex, cultural difference or any other consideration.
These claims are articulated and formulated in what is today known as human rights.
Human rights belong to an individual as a consequence of being human.
The term came into wide use after World War II, replacing the earlier phrase "natural
rights,"
Human rights are sometimes referred to as fundamental rights, basic rights, inherent rights,
natural rights and birth rights.

1.1. Historical Foundations Of Human Rights

 The roots for the protection of the rights of man can be traced as far back as to the
Babylonian laws.
 Babylon was the capital of a small city state of Mesopotamia, named Babylonia, located in
what is now Iraq. Babylon reached its heyday under the Babylonian king Hammurabi (1792-
1750 BC), who ruled all of southern Mesopotamia.
 The Babylonian King 'Hammurabi' issued a set of laws to his people called 'Hammurabi's
Codes.' It established fair wages, offered protection of property and required charges to be
proved at trial.
 Hammurabi is known for the Code of Hammurabi, one of the earliest surviving codes of
law in recorded history.
 All the major religions of the world have a humanist perspective that supports human rights
despite the differences in their content.

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 The evolutions of human rights have taken place over centuries.
 Man had to struggle hard in order to achieve the ultimate goal – living with dignity – which
still has to be realized in various societies.
 The world recognized the U.N.Charter of 1945 which states that human rights are inalienable
aspect of mankind.
 The origin of human rights may be traced to the theory of Natural Rights derived from the
concept of Natural Law, as propounded/advocated/ by ancient Greek Philosophers and
further developed by Thomas Hobbes and John Locke.
 The American and French Revolution gave further impetus to the struggle of human rights.
 The evolution and development of human rights in the international context can be traced to
the Magna Carta and the English Bill of Rights followed by the French Declaration and the
American Bill of Rights.
 The twentieth century witnessed the crystallization of the philosophy of Human Rights when
 the United Nations adopted the UN Charter, 1945,
 The Universal Declaration of Human Rights, 1948 and
 the International Covenants on Human Rights with further emphasis to protection of
rights of Women, Abolition of Slavery, Racial Discrimination, Civil and Political
Rights, Economic, Social and Cultural Rights and most importantly the Rights of
children.
In Ethiopia the drafters of Constitution took care to incorporate Human Rights for its own
citizens as well as for the aliens.

The Natural Rights Theory

 Though the expression ‘human rights’ had its origin in international law, which is not older
than the World War II, the concept of an individual having certain basic, inalienable rights as
against a sovereign State had its origin in the doctrines of natural law and natural rights.
 Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704) and Jean-Jacques Rousseau (1712
– 1778) are the three main thinkers who developed the Natural Rights theory.

Thomas Hobbes was the first champion of the theory of ‘natural rights’.
 In his celebrated book, ‘Leviathan’, he advocated that no individual could ever be deprived
of the right to life, which he enjoyed in the state of nature.

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 He asserted that all human beings are equal, without any consideration.

John Locke developed the idea further in his book, ‘Two Treatises Government.’ He argued
that every human being has a natural right to life, personal liberty, and property, and that no
governmental authority has power to deprive individuals of these rights because they had
enjoyed them even before the creation of the civil or political society.

Jean-Jacques Rousseau is regarded as the greatest master of natural law school.

 In his celebrated book, ‘The Social Contract’, Rousseau states that “All men are born free but
everywhere they are in chains.”
 Rousseau proclaimed that men are bestowed with inalienable rights of liberty, equality and
fraternity.
 These concepts became the basis for the French Declaration of the Rights of Man and of the
Citizen.
 He held that rights are natural, because they were bestowed upon man by God himself. These
rights exist independently of the legal code of any country.

Landmarks In Development Of Human Rights

The important landmarks in the progress of human rights are as follows:

1. The Magna Carta, 1215.

 The Magna Carta, also known as the Great Charter, of 1215 is the most significant
constitutional document of all human history.
 The main theme of it was protection against the arbitrary acts by the king.
 The 63 clauses of the Charter guaranteed basic civic and legal rights to citizens, and
protected the barons (A British nobleman of the lowest rank) from unjust taxes.
 The English Church too gained freedom from royal interferences.
 King John of England granted the Magna Carta to the English barons on 15th June 1215.
 The king was compelled to grant the Charter, because the barons refused to pay heavy taxes
unless the king signed the Charter.

2. The English Bill of Rights, 1689.

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 The next source and avenue of the development of the philosophy of human rights is the
English Bill of Rights, enacted on December 16, 1689, by the British Parliament.
 The British Parliament declared its supremacy over the Crown in clear terms. The English
Bill of Rights declared that the king has no overriding authority.
 The Bill of Rights codified the customary laws, and clarified the rights and liberties of the
citizens.
 It lays down the twin foundations, viz., the supremacy of the law, and the sovereignty of the
nation, upon which, the English constitution rests.

3. American Declaration of Independence, 1776.

 The first colonies to revolt against England were the thirteen States of America.
 These states declared their independence from their mother country on 4th July 1776.
 The declaration charges the king with tyranny and affirms the independence of the
American colonies.
 The declaration of independence has great significance in the history of mankind as it
justified the right to revolt against a government that no longer guaranteed the man’s natural
and inalienable rights.

4. The U.S. Bill of Rights, 1791.

 The U.S. Constitution was enacted on 17th September 1787. The most conspicuous defect
of the original constitution was the omission of a Bill of Rights concerning private rights
and personal liberties.
 James Madison, (member of the U.S. House of Representatives) therefore proposed as
many as twelve amendments in the form of Bill of Rights.
 Ten of these were ratified by the State legislatures. These 10 constitutional amendments
came to be known as the Bill of Rights.
 The Bill of Rights is a list of limits on government power. (e.g Amendment II, the right
of the people to keep and bear arms, shall not be infringed. )
 The overall theme of the Bill of Rights is that the citizen be protected against the abuse of
power by the officials of the States.

5. The French Declaration of the Rights of Man and of the Citizen, 1789

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 The Declaration of the Rights of Man and Citizen, defining a set of individual and
collective rights for all the people, regardless of their estate.
 The fall of Bastille (Bastille, a prison that was a symbol of the King's absolute and
arbitrary power.) and the abolition of feudalism/monarcy/. The Rights were formulated in
17 Articles.
 The Declaration of the Rights of Man and of the Citizen has far reaching importance not
only in the history of France but also in the history of Europe and mankind.
 The declaration served as the death warrant for the old regime and introduced a new social
and political order, founded on the noble and glittering principles.
 Further the declaration served as the basis for many Constitutions, framed in different
countries, where the framers gave top priority to human rights.

6. Declaration of International Rights of Man, 1929.

 After World War I, questions about human rights and fundamental freedoms began to be
raised.
 In 1929, the Institute of International Law adopted the Declaration of International rights of
Man.
 The Declaration declared that fundamental rights of citizen, recognized and guaranteed by
several domestic constitutions.

7. The UN Charter, 1945.

 The United Nations Charter was drafted, approved and unanimously adopted by all the
delegates of the 51 states, who attended the United Nations Conference at San Francisco.
 The UN Charter contains provisions for the promotion and protection of human rights.
 The importance of the Charter lies in the fact that it is the first official document in which
the use of ‘human rights’ is, for the first time traceable and which also recognized the
respect for fundamental freedom.

8. The Universal Declaration of Human Rights, 1948.

 The Universal Declaration of Human Rights was adopted by the General Assembly of the
United Nations on 10th December, 1948.

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 The Declaration consists of thirty Articles and covers civil, political, economic, social and
cultural rights for all men, women and children.
 The declaration however is not a legally binding document. It is an ideal for all mankind.

9. International Covenants on Human Rights

 The Universal Declaration of Human Rights, 1948 was not a legally binding document. It
lacked enforcements.
 This deficiency was sought to be removed by the U.N. General Assembly by adopting in
December, 1966, the two Covenants, viz,
1. International Covenant on Civil and Political Rights and
2. International Covenant on Economic, Social and Cultural Rights.
 The two International Covenants, together with the Universal Declaration and the
Optional Protocols, comprise the International Bill of Human Rights.
 The International Bill of Human Rights represents a milestone in the history of human
rights. It is a modern Magna Carta of human rights.

1.2. UN human rights system

The Legal Framework

The UN human rights system is a fundamental component of the international human rights
framework. The UN human rights system comprises: The treaties in which the international
human rights which are the subject of the UN system are enshrined.

1. The UN Charter

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The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations Conference on International Organisation, and came into
force on 24 October 1945.
The Statute of the International Court of Justice is an integral part of the Charter.
The Charter of the United Nations represents a significant advancement in the direction of
faith in and respect for human rights.
The appalling atrocities perpetrated by the Nazis against the Jews and other races during
World War II led to a strong movement towards international protection of fundamental
human right.
The delegates from some of the States at the San Francisco Conference were in favor of the
adoption of an even stronger provision concerning human rights.
The Charter contains a number of provisions for the promotion of human rights and
fundamental freedoms in the Preamble and in Articles 1, 13(b), 55, 56, 62(2), 68 and 76(c),
which are as follows:

a) The first paragraph of the Preamble of the Charter lays down that "we the people' of the
United Nations are determined to reaffirm faith in the fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women and of nations
large or small . . ."
The U.N. Charter did not contain a specific Charter on human rights and so an attempt was
made to fill them out by drawing up the "Universal Declaration of Human Rights and
Fundamental Freedoms" “in 1948 and with a view to implement the Universal Declaration.

2. Universal Declaration of Human Rights

UDHR Adopted by the General Assembly on 10 December 1948, the Universal Declaration
of Human Rights (UDHR) is a foundational document of the UN human rights system.
Its adoption marked the first time in history that the international community collectively
agreed upon a body of fundamental rights and freedoms to which all persons, simply by
virtue of their humanity, were entitled.
Indeed, the principle of the universality of human rights is the cornerstone of international
human rights law.

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 The UDHR contains a preamble and 30 articles, which include a general prohibition of
discrimination and set forth various types of rights and obligations, including political and
civil rights.
Although the UDHR is not a legally binding instrument (i.e. it does not create legal
obligations for States), customary international law, it has over time been widely accepted as
a universal agreement on fundamental human rights norms that duty bearers are expected to
respect, protect and fulfill.
The UDHR has inspired a large number of legal documents at the national, regional and
international levels.
Many subsequent international instruments are based on its catalogue of fundamental rights
and freedoms. ICCPR, and ICESCR, have effectively translated those rights into binding
treaty law for the States that ratified these instruments.

The rights set out in the Universal Declaration have subsequently been transformed into a legally
binding framework of international human rights through the following 9 international treaties,
namely:

3. The 9 Core Human Rights Treaties

There are nine core international human rights treaties. The nine treaties address economic,
social and cultural rights, civil and political rights, the elimination of racial and gender
discrimination, protection against torture and forced disappearance and the rights of women,
children, migrants, persons with disabilities.

Each of these international human rights treaties also has a monitoring body within the UN
human rights system which monitors the implementation of the treaty provisions by its States
parties.

The nine core international human rights treaties dealing with specific human rights are:

1. The International Covenant on Civil and Political Rights (ICCPR) (1976)

2. The International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976)

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 3. The International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) (1969)

4. The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) (1981)

5. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) (1987)

6. The Convention on the Rights of the Child (CRC) (1990)

7. The International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (ICRMW) (2003)

8. The International Convention on the Rights of Persons with Disabilities (2008)

9. The International Convention for the Protection of All Persons from Enforced
Disappearance (This treaty the most recent one -- entered into force on 23 December
2010.)

These treaties create obligations on States Parties to establish and enact laws promoting
and protecting human rights at the national level.

Some treaties are supplemented by optional protocols, which States Parties to the treaty may
ratify. Optional protocols normally contain provisions regarding a specific issue and/or allow
for specific procedures, such as individual complaints or inquiries.

1.3. An Overview of Regional Human Rights Systems

Regional human rights systems, consisting of regional instruments and mechanisms, play an
important role in the promotion and protection of human rights. Regional human rights
instruments (e.g. treaties, conventions, declarations) help to localize international human rights

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norms and standards, reflecting the particular human rights concerns of the region. Regional
human rights mechanisms (e.g. commissions, special rapporteurs, courts) then help to implement
these instruments on the ground.

The existence of an effective regional human rights system is of fundamental importance to the
promotion and protection of human rights, as it:

 Assists national governments with the implementation of their international human rights
obligations; for example, assisting with the implementation of the recommendations of treaty
bodies, special procedures and the Universal Periodic Review;
 Provides people with more accessible mechanisms for the protection of their human rights,
once national remedies have been exhausted;
 Helps to raise peoples awareness of their human rights, placing them in a more localised
context and reflecting their particular human rights concerns;
 Provides regional input to the development of international human rights standards and the
improvement of international human rights mechanisms;
 Helps national governments to better address regional human rights concerns that cross
national borders; for example, human rights concerns related to migration, transnational
crime and environmental disasters.

Currently, the three most well established regional human rights systems exist in Africa, the
Americas and Europe.

The more recent African regional human rights system has been established within the
intergovernmental organisation known as the African Union. The main regional human rights
instrument in Africa is the 1981 African Charter on Human and Peoples’ Rights, and the main
mechanisms are the African Commission on Human and Peoples’ Rights and the recently
established African Court on Human and Peoples’ Rights, which will soon be merged with the
African Court of Justice.

Unit 2
The African Regional Human Rights System
2.1. The Charter of OAU and Constitutive Act of African Union

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2.2. The African Charter on Human and Peoples’ Rights (ACHPR)
2.1.1. Historical Background and Drafting Process of ACHPR
2.1.2. The Distinctive Feature of the African Charter
2.1.3. Rights Guaranteed under the Charter
a) State Obligations under the ACHPR
b) The Principles of Non-discrimination and Equality
c) The Civil and Political Rights
d) The Economic, Social and Cultural Rights
e) The Rights of Peoples (Group Rights)
2.1.4. The Concept of Duty under the African Charter
2.1.5. Claw-Back Clauses under the African Charter

 The African system In 1981, the Organisation of African Unity (OAU) adopted the African
Charter on Human and Peoples’ Rights, which entered into force in 1986.
 The African Charter (also referred to as the Banjul Charter) has been ratified by 53 states and
enumerates civil and political rights and economic, social and cultural rights While the
African Charter incorporates principles of universal dimension, it also reflects the virtues and
values of African traditions.
 Thus, the African Charter is characterised by the concept of a reciprocal relationship between
the individual and the community, linking individual and collective rights.
 It recognises the rights of groups in addition to the family, women and children. The aged
and the infrm are accorded special protection, and the right of peoples to self-determination
is elaborated in the right to existence, equality, and non-domination.
 The African Charter also enumerated duties owed by individuals Like its European and
American counterparts, the African Charter establishes an African Commission for Human
Rights, with promotional and protective functions, and allows individuals to file a complaint
with the Commission.
 Thus signatory states, individuals, groups of individuals, and non-governmental
organisations, whether or not they are victims of the alleged violation, may all file a
complaint.

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 In contrast to the European and American procedures, however, concerned states are
encouraged to reach a friendly settlement without formally involving the investigative or
conciliatory mechanisms of the Commission African customs and traditions, it is said,
emphasize mediation, conciliation, and consensus rather than the adversarial and adjudicative
procedures that are common to Western legal systems.
 The eleven-member Commission is an organ linked to the Assembly of Heads of State and
Government of the African Union (AU), which replaced the OAU in 2003.
 The Commission has its seat in Banjul, Gambia The Commission considers periodic reports
prepared by States Parties on legislative or other measures taken to enact the Charter’s
provisions. The activities of the Commission are administered by a Secretariat (which,
however, is understaffed and insufficiently funded) Despite the African Charter’s
innovations, it also contains serious shortcomings. As a product of political compromise, the
rights enumerated in the Charter are brief and vague.
 The Charter has procedural and structural defects concerning human rights protection, and
the commitment to uphold human rights has been more rhetorical than actual Nevertheless,
some positive developments can be noted Although the African Charter did not establish a
human rights court, a Protocol to the African Charter on the establishment of an African
Court of Human and Peoples’ Rights was adopted by the OAU in June 1998.
 The Court does not yet exist and funding remains a serious obstacle to its creation In 1999,
both the Protocol on the Rights of Women in Africa and the African Charter on the Rights
and Welfare of the Child entered into force Collaboration with NGOs has become
indispensable to the work of the African Commission By 2007, over 300 NGOs held
observer status with the Commission.
 The NGOs file complaints on behalf of victims and participate in the consideration of State
reports since they provide much information, sometimes contradicting the offcial report As
with their UN treaty body counterparts, NGOs with observer status may prepare and submit
‘shadow reports’ on the human rights situation in their countries.
 These ‘shadow reports’ enable the Commission to have a constructive dialogue with State
representatives when their country’s periodic report is being considered. However, the
Commission itself has expressed concern that only few of the NGOs have submitted their

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 reports in time or at all Human rights offcers should assist NGOs in preparing shadow reports
to the Commission as well as to UN treaty bodies.
 The African Commission has recognised the importance of national institutions to protect
and promote human rights and as essential partners in implementing the African Charter at
the national level Half the countries in Africa now have national human rights commissions,
while only one country (Togo) did in 1989 However, Human Rights Watch in a
major study released in 2001 stated that “rapid growth in government-sponsored human
rights commissions across Africa has not generally led to better human rights protection”
Many of the commissions appear designed to deflect international criticism of human
rights abuses rather than to address the abuses themselves, but there are several positive
experiences too, for example the commissions in Ghana, South Africa and Uganda 14

The African Commission has designated special rapporteurs on some thematic issues:
extrajudicial, summary and arbitrary executions; prisons and conditions of detention; and
women’s rights It also undertakes country missions and adopts country-specifc resolutions

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