The Protection of Human Rights in Africa

The Protection of Human Rights in Africa and the African Charter on Human and
Peoples' Rights: A Comparative Analysis with the European and American Systems
Author(s): B. Obinna Okere
Source: Human Rights Quarterly , May, 1984, Vol. 6, No. 2 (May, 1984), pp. 141-159
Published by: The Johns Hopkins University Press
Stable URL: https://www.jstor.org/stable/762240
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ARTICLES
The Protection of Human Rights in Afric

and the African Charter on Human and
Peoples' Rights: A Comparative Analysis
with the European and American Systems
B. Obinna Okere
The protection of human rights -which consists in the attribution of certain

rights to, and imposition of certain duties on, the individual to enable him to
lead a full and meaningful existence in, and to contribute as a useful
member of, society - is not an idea alien to Africa. Following the example of
the Council of Europe and the Organization of American States, the member
states of the Organization of African Unity (O.A.U.) have recently adopted
an African Charter on Human and Peoples' Rights, which seeks to institu-
tionalize the protection of human rights.1
In formulating the guaranteed rights and correlative duties, the African
Charter is obviously animated by the universalist vocation and naturalist
principles which underlie human rights. But in many important respects, the
African Charter has some specific characteristics whose inspiration is
derivable solely from Africa's colonial history, philosophy of law, and con-
ception of man.
This article examines successively the place of human rights under the
O.A.U. Charter 2 and the impetus that the shortcomings manifested in the
system gave to the adoption of the African Charter. The second section
analyzes the African Charter in terms both of substantive rights and duties
and of the machinery provided for their enforcement. The third section
1. The Charter was adopted by the O.A.U. Summit at Nairobi, Kenya, 27 June 1981; O.A.U.
Doc. CAB/LEG/67/3, rev. 5; reprinted in International Legal Materials 21 (1982), 58. See
U. O. Umozurike, "The African Charter on Human and Peoples' Rights," American Journal
of International Law 77 (October 1983), 902.
2. Charter of the Organization of African Unity, adopted 23 May 1963; 479 U.N.T.S. 39
(1963); reprinted in International Legal Materials 2 (1963), 766.
141

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compares t
study conc
protection
I. THE PLACE OF HUMAN RIGHTS IN THE O.A.U. CHARTER
The protection of human rights is merely peripheral in the sche

priorities of the O.A.U. Conceived of principally as a political organ
whose abiding, if not consuming, preoccupation is the unity of A
states, its very name underlining the concern for unity, the O.A.U. Ch
recognizes protection of human rights only within the context of pro
African unity. Even though the O.A.U. Charter makes reference
embodies some notion of human rights, it remains incontestably tr
the focal points of interest of the organization are political unity, non
ference in the internal affairs of other states, and the liberation of Afri
ritories still under colonial domination.
The preamble to the O.A.U. Charter mentions the Universal Declara-
tion of Human Rights as containing the principles to which the states parties
reaffirm their adherence. For those states, the Charter of the United Nations
and the Universal Declaration of Human Rights "provide a solid foundation
for peaceful and positive co-operation" among them. The first paragraph of
the preamble reaffirms that "it is the inalienable right of all people to control
their own destiny"; the second paragraph recognizes that "freedom, equal-
ity, justice and dignity are essential objectives for the achievement of the
legitimate aspirations of the African peoples"; the third establishes for the
member states the "responsibility to harness the natural and human
resources" of the continent "for the total advancement of our peoples in all
spheres of human endeavor."
In addition to these principles of human rights which permeate the
preamble, the purposes assigned to the O.A.U. by its member states contain
an explicit reference to human rights. According to Article II, section 1,
paragraph e, one of the objectives of the organization shall be "to promote
international cooperation, having due regard to the Charter of the United
Nations and the Universal Declaration of Human Rights." Paragraph b of the
same article provides that one of its purposes shall be "to co-ordinate and
intensify their co-operation and efforts to achieve a better life for the peoples
of Africa." Paragraph d outlaws colonialism.
Is it logically deducible from the foregoing that the O.A.U. intended to
make it an obligation for its members to protect human rights as guaranteed
by the United Nations Charter and especially those set forth in the Universal
Declaration? As regards the legal value of declarations of principles in a
preamble, it is now generally agreed that if they rise above the level of mere
slogans, they do not attain the height of positive law. At best, they are mere

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Human Rights in Africa and the African Charter 143
expressions of an ideological function, a program of action and a di

of principles of interpretation; they do not import any strict legal
If the objectives of the O.A.U. make specific reference to human
there is by contrast no mention of human rights in the princi
Charter apart from the right of peoples to self-determination; nor
mention of the question of cooperation among states. This is eas
standable; for as the French jurist Frangois Borella aptly remarked,
must be taken of the "fragility of the African States, the artificial c
which must be camouflaged by the permanent affirmation that
and that they possess exclusive jurisdiction over their population
territories."3 There is apparent antinomy between promoting the p
of human rights and emphasizing the exclusive domain of contr
state. To further underscore this relegation of the question of hum
Article XX of the O.A.U. Charter, which provides for the establ
certain specialized commissions, makes no mention of a comm
human rights.4 The reality, according to Keba M'baye, Judge of the
tional Court and Chairman of the Group of Experts who prep
African Charter, is that Africa is "more concerned with achieving e
and social development and maintaining the stability of its governm
with recognizing and promoting rights and freedoms."' For Afr
formerly under colonial domination, the rallying point and com
ception of human rights are limited to the right to self-determina
denunciation of the racist regimes of southern Africa. While ex
stern and resolute measures adopted against the dehumanizing
apartheid, one shares the sentiment expressed by Nirame Ndiay
would like to have seen "an affirmation within the O.A.U., of
seated conviction that human rights should also be respected by
governments, despite the requirements of national integration and
ment."6
The preeminence of state interest- namely, respect for national
sovereignty, territorial integrity, and noninterference in the internal affairs of
another state - necessarily resulted in the relative relegation of the question
of human rights. African states are profoundly attached to the notion of
sovereignty, which serves their interests. In its positive aspect, sovereignty
signifies that within the confines of a given territory no other power can
impose or compete with the state, which has the last word. Negatively,
sovereignty discountenances any external interference in the internal affairs
3. "Le Systeme juridique de I'OUA," Annuaire franpais du droit international (Paris 1971),
236.
4. The commissions established include the following: Economic and Social Commission;
Educational and Cultural Commission; Health, Sanitation and Nutrition Commission;
Defense Commission; Scientific, Technical and Research Commission.
5. Les dimensions internationales des droits de I'homme (Paris 1978), 605.
6. As quoted in ibid., 623.

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of another
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7. R6flexion

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of ratification or adherence of a simple majority of the O.A

states, as provided by Article 63(3).
II. HUMAN RIGHTS UNDER THE AFRICAN CHARTER
Analysis of human rights under the African Charter may be divided

ing to its special characteristics, its contents, and its enforcement ma
A. Characteristics of the African Charter
The African Charter has certain specific characteristics. The committee of

experts who drafted the Charter was guided by the principle that "the African
Charter on Human and Peoples' Rights should reflect the African conception
of human rights," and "should take as a pattern the African philosophy of law
and meet the needs of Africa." 8 It therefore strove to achieve some original-
ity in the content and presentation of the Charter.
Several characteristics deserve mention: (1) The African Charter reflects
the wish of member states of the O.A.U. to maintain their distance from both
the East and the West in their conception of the ideological function of
human rights. (2) In the category of recognized rights, the pride of place goes
to the principle of nondiscrimination both as between individuals and as
between peoples. This explains why the principle of nondiscrimination was
the first principle enshrined in the Charter. (3) There is a linkage between the
African Charter on Human and Peoples' Rights and the O.A.U. Charter. The
former emphasizes the rules relating to the objectives of the O.A.U. as stated
in Article 2 of the O.A.U. Charter and more particularly on the duty of
solidarity and cooperation, on state sovereignty, and on the struggle against
foreign domination. (4) The African Charter adopts a dialectic approach by
correlating rights with corresponding duties. (5) The realization of individual
rights can find their fullest expression and fulfillment only within the context
of the community. The conception of an individual who is utterly free, such
as to be irresponsible and opposed to society, is not consonant with African
philosophy; accordingly, the African Charter specifies the duties of the indi-
vidual toward the community in which he lives, more particularly toward
the family and state. (6) The great importance of African values and morals in
African societies receives prominence. (7) The African Charter gives
economic, social, and cultural rights the place they deserve, with particular
emphasis on the right to development. (8) The Charter accords primacy to
8. O.A.U. Doc. CAB/LEG/67/3, rev. 1, at 1. The quoted language does not appear in the
Charter as adopted. A statement similar to the first quotation, however, is in the Preamble
as adopted. O.A.U. Doc. CAB/LEG/67/3, rev. 5.

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political se
tion of hu
B. Rights
If the righ
in the sen
solemnly a
states are
distilled fr
ence. This
Equality b
3) and the
5) assume a
moral tort
Equatorial
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erates as a
are inviolab
his life and
Article 7 g
of innocen
court or t
African st
independen
political o
legislation
while Art
dissemination of ideas.
Freedom of expression is a fundamental right in traditional Africa, where
the rule, especially in acephalous societies, is by consensus predicated upon
free expression and contribution of one's opinion. Political intolerance,
often in the wake of the establishment of military dictatorships or installation
of one-party states, has put this freedom in jeopardy. The press is
government-owned and echoes sentiments favorable to the government or
is otherwise emasculated. Doubtful of their political legitimacy and appre-
hensive of their political stability, the leaders of these one-party states are jit-

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tery and hypersensitive to criticism. All media of expression are ap

as mouthpieces of the single political party to eulogize the ruling an
scient "messiah." Freedom of association is limited to joining
recognized political party and trade union. Thus Article 1
guarantees freedom of association, and Article 11, which comp
with the freedom of assembly, are very pertinent. These provis
with Article 13 of the Charter, which guarantees to every citizen "th
participate freely in the government of his country, either directly
freely chosen representatives in accordance with the provisions of
Freedom of movement, which includes the right to leave any co
including one's own, and to return thereto, is enshrined in Article
Charter, along with the right to seek and obtain asylum in other c
Construed against the background of the multitude of voluntary an
untary exiles in Africa, any provisions which seek to eliminate
restrictions in the path of free movement of persons would certain
the course of human rights in Africa.
An aspect of this freedom of movement which commands specia
tion is the prohibition of the mass expulsion of nonnationals. In
mass expulsion of nonnationals from some African states abound in
recent history. Nigerians were expelled from the Cameroons soon a
pendence, Ghanaians from Ivory Coast, Rwandans from Burund
versa. Ghana deported foreign nationals in 1969-70 in a move to
the number of unemployed persons. Liberians were expelled f
Coast in 1971 and Nigerians from Zaire. Kenyans and Tanzania
expelled from Uganda; in 1977 foreign Africans were expelled
Congo Republic regardless of their long stay, and their property w
cated. Critics might also point to the recent mass exodus of aliens,
Ghanaians, from Nigeria even though the Nigerian government
to explain that there was no mass expulsion of non-Nigerian Af
only expulsion of illegal immigrants, which in no way affected
valid entry and residence permits.
Economic and social rights recognized by the Charter h
remarkably African specificity and translate the African con
economic development within the context of group solidarity. T
work (art. 15), the right to health (art. 16), and the right to educatio
are recognized. It is one thing, however, to proclaim rights and qui
ferent matter to establish the infrastructure necessary for the enj
these socioeconomic rights. Granted the paucity of resources at the
of most African governments, one doubts the immediacy of enj
these rights or the efficacy of these provisions. These socioeconomi
are purely exhortatory, resembling the Fundamental Objectives
tive Principles of State Policy under the Nigerian Constitution. In d
the nonjusticiability of the Fundamental Objectives under the Niger
stitution, the Constitution Drafting Committee made the follo

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ments, wh
rights unde
only come
them. Thus
speak of th
refer to th
The Chart
third-gener
peace; to s
social, and
underdeve
context of a search for the New International Economic Order. Article 21
confirms, almost adopts the text of, the United Nations Resolution on the
Permanent Sovereignty of Peoples over their Natural Resources as well as
the International Covenant on Economic, Social and Cultural Rights. Article
21 of the Charter, for example, provides:
All peoples shall freely dispose of their wealth and natural resources. This right
shall be exercised in the exclusive interest of the people. In no case shall a people
be deprived of it.
Paragraph 5 of Article 21 concludes:
States Parties to the present Charter shall undertake to eliminate all forms of
foreign economic exploitation particularly that practised by international
monopolies so as to enable their peoples to fully benefit from the advantages
derived from their natural resources.
The independence of the judiciary receives a special mention in Article

26. This has become necessary in the light of African experience of
manipulation of the courts by the executive or the ruling political party.
For rights guaranteed under the Charter, there are correlative duties.
The African conception of man is not that of an isolated and abstract indi-
vidual, but an integral member of a group animated by a spirit of solidarity.
This contrasts with the European conception of human rights.
The European conception of human rights, that is to say, a set of principles whose
essential purpose is to be invoked by the individual against the group with which
he is in conflict, is not met with in traditional Africa. In Africa, the individual,
completely taken over by the archetype of the totem, the common ancestor or
the protective genius, merges into the group.10
9. Report of the Nigerian Constitution Drafting Committee (Lagos: Government Printer,

1976), vol. I, at XV. See B. Obinna Okere, "Fundamental Objectives of Nigerian Constitu-
tion," International and Comparative Law Quarterly (London) 32, pt. 1 (January 1983), at
1.
10. Keba M'baye, note 5 above, 602.

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As has been pointed out by Professor Collomb, living in Africa "m

doning the right to be an individual, particular, competitive, selfis
sive, conquering being . . in order to be with others, in peace
mony with the living and the dead, with the natural environm
spirits that people it or give life to it." 1
This membership in the group necessarily entails certain duties
the group: the duty of children toward their parents to maintain th
of need; the duty to preserve the harmonious development and
the family (art. 29(1)); the duty to promote, safeguard, and reinfo
respect and tolerance (art. 28); the duty to serve the national comm
placing one's physical and intellectual abilities at its service (art. 29
paying taxes imposed by law in the interest of society (art. 29(6));
preserve and strengthen positive African cultural values (art. 29(7)
duty to contribute to the promotion and achievement of African u
29(8)).
In the interpretation and application of this Charter, the Afric
mission of Human Rights is enjoined to draw inspiration from int
law on human and peoples' rights, particularly from the provision
African instruments on human and peoples' rights, the Charter of
Nations, the O.A.U. Charter, the Universal Declaration of Hum
other instruments adopted by the United Nations and by African
in the field of human rights, and the provisions of various in
adopted within the specialized agencies of the United Nations of
parties to the Charter are members (art. 60). The commission m
draw from African practices consistent with international norms
and peoples' rights, from customs generally accepted as law, fr
principles of law recognized by African states, and from legal
and doctrine.
The rather general terms in which most of these rights are formulated
vest a large measure of discretion and autonomy in interpreting these texts
on the African Commission of Human Rights. It can only be hoped that in
the exercise of its competence in this domain, it will progressively build up a
jurisprudence which will facilitate the delineation of an African conception
of human and peoples' rights.
C. Machinery of Enforcement
Observance of the rights and duties guaranteed under the African Charter
are to be ensured by two organs, namely, the Assembly of Heads of State
and the African Commission of Human and Peoples' Rights.
11. Quarantibme Congrbs M6dical Francophone (Dakar), 1975.

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The comm
"African pe
integrity,
rights" (ar
tion may
commissio
State and G
to the Char
frustrating
way of vo
whole wor
sions is that contained in Article 34 of the Charter: "When two candidates
are nominated by a State, one of them may not be a national of that State."
This provision is of great significance, especially in a continent where most
intellectuals are not in the good books of their government. This provision
enables a deserving candidate of proven competence to be adopted, with
equal chance of election, by a state other than his own, thus underscoring
the primacy of technical competence over political expediency.
The legal status of the members of the commission assures their inde-
pendence vis-a-vis the states: they enjoy diplomatic privileges and immuni-
ties (art. 43); they have a six-year tenure of office, re-eligibility, and security
of tenure (art. 36); 12 they are not answerable to the O.A.U., and function as
an autonomous body, even though the O.A.U. provides the necessary staff
and services 13 and pays the emoluments and allowances of the members of
the commission (art. 44). Following the model of the International Court of
Justice, the election of members of the commission is staggered to secure
continuity of experience.14
It must, however, be noted that the absence of incompatibility between
the quality of a member of commission and that of a member of the govern-
ment or a member of the diplomatic corps could compromise the indepen-
dence of the commission vis-a-vis states.
Exercise of competence by the commission is predicated upon satisfac-
tion of the three traditional conditions of ratione loci, ratione materiae, and
ratione personae. As to ratione loci, violation of the rights will have taken
place within the territory of a member state. Ratione materiae requires rights
and duties to be such as are guaranteed under the African Charter of Human
and Peoples' Rights. The competence ratione personae envisages both states
and individuals, even though the modalities of the seisin of the commission
12. Removal of a member for inability to discharge his duties requires unanimous vote of
other members of the commission.
13. The secretary general of the O.A.U. appoints the secretary of the commission.
14. Article 36 provides that "the term of office of four of the members elected at the first elec-
tion shall terminate after two years and the term of office of three others, at the end of four
years."

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vary, depending on whether the complainant is a state or an individ

procedure to be adopted by the commission clearly distinguishe
communications from states and petitions from individuals or grou
In the case of communications from states, the Charter en
primarily amicable bilateral settlement, through either negotiation
peaceful method of settlement of disputes. Article 47 requires a sta
reasons to believe that another state party to the Charter is in brea
provisions thereof to draw the attention of the transgressing state t
ter in writing and also to address the same communication to the se
general of the O.A.U. and the chairman of the commission. Th
which the communication is addressed must give a written reply el
the matter within three months, including relevant information re
the laws and rules of procedure applied and applicable, as w
redress already given or the course of action available. Where t
not settled within three months to the satisfaction of the two states involved
through bilateral negotiation or by any other peaceful procedure, either
state shall have the right to submit the matter to the commission through the
chairman and shall notify the other states involved (art. 48). Even without
any attempt at amicable settlement, a state could seize the commission (art.
49). The condition precedent to admissibility of the complaint is the exhaus-
tion of local remedies, "unless it is obvious to the Commission that the pro-
cedure of achieving these remedies would be unduly prolonged" (art. 50).
When the commission is seized of a complaint, it is to adopt the follow-
ing procedure: it notifies the state accused to be in violation of the Charter; it
investigates the matter by all means it deems appropriate (art. 51 and 52); it
attempts amicable settlement; it writes up a detailed report; and it eventually
transmits this report to the states concerned and to the Assembly of Heads of
State and Government with its recommendations (art. 54). The report may
finally be published by the chairman of the commission if the Assembly of
Heads of State and Government so decides (art. 59).
In the case of individuals or groups other than states, communications
from them alleging violation of human and peoples' rights will be considered
by the commission if they satisfy the following conditions: if they indicate
their authors, even if the latter request anonymity; if they are compatible
with the Charter of the O.A.U. or with the human rights Charter; if they are
not written in disparaging or insulting language directed against the state
concerned and its institutions or to the O.A.U.; if they are not based exclu-
sively on news disseminated through the mass media; if they are sent after
exhausting local remedies; if they are submitted within a reasonable period
from the time local remedies are exhausted or from the date the commission
is seized of the matter; and if they do not deal with cases which have been
settled by these states involved in accordance with the principles of the
Charter of the United Nations, the Charter of the O.A.U., or the provisions
of the African Charter on Human and Peoples' Rights.

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Where it a
communic
tence of a
rights, the
State and G
munication
tions rema
and Government shall decide otherwise (art. 59).
Besides its specific mandate of formulating reports and recommenda-
tions based on communications emanating from states and groups or indi-
viduals, the commission also is assigned the general responsibility to pro-
mote human and peoples' rights (art. 45). In particular, it has been assigned
the function to collect documents; undertake studies and researches on
African problems in the field of human and peoples' rights; organize
seminars, symposia, and conferences; disseminate information; encourage
national and local institutions concerned w.,n human rights; and if the need
arises, give its views or make recommendations to governments.
The commission shall also formulate and lay down principles and rules
aimed at solving legal problems relating to human rights upon which African
governments may base legislation. To achieve its purpose, the commission is
enjoined to cooperate with other African and international institutions con-
cerned with the promotion and protection of human and peoples' rights.
Most importantly, the commission may be called on to interpret the provi-
sions of the African Charter at the request of a state party, an institution of
the O.A.U., or an African organization recognized by the O.A.U.
III. COMPARISON WITH THE EUROPEAN AND

AMERICAN CONVENTIONS ON HUMAN RIGHTS
This section compares the African Charter's provisions on substantive righ

and enforcement procedures with those of the European and Ameri
Conventions.
A. Content of Rights
The authors of the African Charter recognized that while sticking to "African
specificities in dealing with rights," it is nevertheless "prudent not to deviate
much from the international norms solemnly adopted in various universal
instruments by the different member states of the OAU."15
15. O.A.U. Doc. CAB/LEG/67/3, rev. 1, at 2. The Preamble of the Charter as adopted merely
reaffirms "adherence to the principle of human and peoples' rights and freedoms con-
tained in the declarations, conventions and other instruments adopted by the Organiza-

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Protection of human rights has an ancient ancestry, and many

tional conventions have been concluded under the auspices of i
organizations, especially the United Nations and its specialize
Some of these conventions are the Universal Declaration of Hu
the International Covenant on Economic, Social and Cultural
International Covenant on Civil and Political Rights and the O
tocol thereto; the International Convention on the Elimination of
of Racial Discrimination; the International Convention on the
and Punishment of the Crime of Apartheid; the United Nations Co
Relating to the Status of Refugees and the Protocol thereto; the D
on the Elimination of Discrimination Against Women; the O.A
tion on the Suppression of Mercenarism in Africa; and the pr
various instruments adopted within the specialized agencies of
Nations such as the I.L.O., UNESCO, F.A.O., and W.H.O.16 The African
Commission on Human and Peoples' Rights is enjoined to draw inspiration
from these international instruments, to which are parties not only some
African states but also other member states of the international community.
It is, therefore, not surprising that a strong current of internationalism runs
through the African Charter in common with the European and American
Conventions.
The European Convention 17 and American Convention 18 emphasize,
as does the African Charter, the protection of life and liberty as the most
elementary human rights.19 The American Convention protects the right to
life "in general from the moment of conception"; both American and Euro-
pean Conventions contain specific provisions concerning the death penalty
The African Charter is laconic: the only qualification to the right to life is that
"no one may be arbitrarily deprived of this right" (art. 4). The three systems
guarantee the right to protection from torture, inhuman, or degrading treat-
ment.20 Liberty of person 21 and the right to a fair trial 22 are also protected.
tion of African Unity, the Movement of Non-Aligned Countries and the United Nations."
O.A.U. Doc. CAB/LEG/67/3, rev. 5.
For a discussion of comparative human rights evaluation, see Rhoda Howard,
"Evaluating Human Rights in Africa: Some Problems of Implicit Comparisons," Human
Rights Quarterly, this issue.
16. These conventions are listed in the original Article 58 of the African Charter (now Article
60).
17. European Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November 1950, entered into force 3 September 1953; 213
U.N.T.S. 222; reprinted, along with five subsequent protocols, in Council of Europe, Col-
lected Texts (1979).
18. American Convention on Human Rights, signed 22 November 1969, entered into force 18
July 1979; O.A.S.T.S. No. 36, at 1; O.A.S. Doc. OEA/Ser. K/XVI/1.1, doc. 65, rev. 1, corr.
1 (1970); reprinted in Inter-American Commission on Human Rights, Handbook of Exist-
ing Rules Pertaining to Human Rights, O.A.S. Doc. OEA/Ser. L./V/II.50, doc. 6 (1980).
19. European art. 1, American art. 2.
20. African art. 5, European art. 3, American art. 5.

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Nigerian C
tion, for
reason of
constitut
discrimin
Many mem
the ground
Islamic La
father and
be contrar
Christians
imacy mig
cultural, a
23. African Charter, art. 7(2).

24. Series A, No. 31, Judgment of 13 June 1979.
25. Section 35(3) of the Draft Constitution. See Report of the Nigerian Constitution Drafting
Committee, vol. I (Lagos: Government Printer), at 21.

129.205.0.24ffff:ffff:ffff on Thu, 01 Jan 1976 12:34:56 UTC
of Africa. By the same logic, it could be inferred that express rec

the rights of illegitimate children in the African Charter might of
both the Moslem and Christian conceptions of morality.
Both the European and the American Convention guarant
freedoms such as that of conscience and religion,26 of assembly an
tion,27 as well as the right to property.28 With regard to freedom
sion, article 13(2) of the American Convention expressly prohibits
sorship. The European Convention does not contain such a rule
of the American Convention embodies a very detailed right of rep
ing anyone injured by inaccurate or offensive statements
disseminated to the public in general by a legally regulated medium
munication. There exists, according to this article, a right to reply
rection using the same communications outlet, under such conditi
law may establish. There is no such provision in the European Con
the African Charter.
The right to property under the American Convention, Ar
grants a right to compensation to everyone deprived of his pr
European Convention does not expressly secure such a right t
tion but merely refers to general principles of international law,
the question of whether nationals of the expropriating state are e
compensation. The African Charter falls short of the America
resembles the European model. Property rights may be infrin
interest of public need or in the general interest of the communi
accordance with the provisions of appropriate laws" (African
makes no provision for payment of compensation.
It must be mentioned that generally the African Charter is clo
American Convention as to the content of guaranteed rights t
European model. For example, Article 22, paragraph 8, of th
Convention provides that in no case may an alien be deported o
to a country, regardless of whether or not it is his country of origi
country his right to life or personal freedom is in danger of bein
because of his race, nationality, religion, social status, or political
similar right is guaranteed under Article 12(3) of the African C
European Convention does not secure such a right.
Again, Article 23 of the American Convention grants wider
than Article 3 of the First Protocol to the European Convention by
ing not only a right to free elections, but also a general right to p
in the conduct of public affairs, directly or through freely chosen
tives, to vote and be voted for, and to have access under genera
of equality to the public service of the country. Article 13 of
26. American art. 12, European art. 9.

27. American art. 13, European art. 9 and 10.
28. American art. 21, European art. 1 of the First Protocol.

129.205.0.246 on Tue, 24 Jan 2023 08:04:59 UTC
156 OKERE
Charter bea
citizen "the
either direc
the provisio
of his count
The greate
tion and th
measures, b
the objecti
developmen
Charter con
duties.30
B. Machiner
It is, howe
guaranteed r
Charter on
the other.
diplomatic
the instrum
the Europe
settlement
violations.
The European and American Conventions both provide for a commis-
sion and for a court of human rights. Article 44 of the American Convention
grants the right to any person or groups of persons to lodge petitions with the
Inter-American Commission concerning denunciations or complaints of
violations of the Convention by a state party. Under Article 45 of the
American Convention, a state party has such a right only if this has been
recognized by both parties concerned, namely, the applicant state and the
respondent state. This system is exactly the reverse of what is found under
the European Convention, where the system of interstate applications under
Article 24 of the Convention is an automatic consequence of ratification of
the Convention, while the right of individual application under Article 25 is
subject to acceptance by the state concerned.
The requirements for the admissibility of applications stipulated in the
American and European Conventions are similar."1 They provide for exhaus-
tion of all domestic remedies according to the generally recognized rules of
29. American art. 26, African art. 22.

30. American art. 32, African art. 27-29.

129.205.0.246 on Tue, 24 Jan 2023 08:04:59 UTC
international law and a wait of six months from the date on which the final
domestic decision was taken. Furthermore, an application may not be enter-
tained by either commission if it is anonymous, is substantially the same as a
matter which has already been examined by the commission, or has already
been submitted to another procedure of international investigation or settle-
ment and if it contains no relevant new information, if it is incompatible with
the provisions of the Convention, if it is manifestly ill-founded, or if it is
abusive. When either commission accepts the application, it ascertains the
facts through investigation and attempts a friendly settlement.32
If the European Commission succeeds in effecting a friendly settlement,
it draws up a report containing a brief statement of the facts and the solution
reached. This report is sent to the states concerned, to the Committee of
Ministers of the Council of Europe, and to the secretary general of the Coun-
cil of Europe for publication (art. 30). If a friendly settlement is not reached,
the European Commission draws up a report on the facts and states its opin-
ion as to whether the facts found disclose a breach by the state concerned of
its obligations under the Convention. This report is transmitted to the Com-
mittee of Ministers and to the states concerned, which are not at liberty to
publish it. In transmitting the report to the Committee of Ministers, the com-
mission may make such proposals as it thinks fit (art. 31).
When a friendly settlement is reached, the Inter-American procedure
follows the European, namely, transmission of the report to the petitioner
and to the states parties to the Convention as well as communication thereof
to the secretary general of the Organization of American States for publica-
tion (art. 49). When a settlement is not reached, the Inter-American pro-
cedure follows a slightly different course in that the Inter-American Commis-
sion prescribes a period within which the respondent state is to take the
measures that are incumbent upon it to remedy the situation examined (art.
51(1)). When the prescribed period has expired, the Inter-American Com-
mission decides by the vote of an absolute majority of its members whether
the state has taken adequate measures and whether to publish its report.
Thus the Inter-American system vests a larger measure of discretion and a
greater power of initiative in the Inter-American Commission in the matter of
decision to publish the report (art. 51(3)). In European systems, the decision
as to the publication of the report of the commission is made by the execu-
tive organ or the Council of Europe, namely, the Committee of Ministers (art.
32). The African Charter follows the European model. The report of the
African Commission is confidential, to be published only "upon the decision
of the Assembly of Heads of State and Government" (art. 59(2)).
The European Court of Human Rights and the Inter-American Court of
Human Rights are similar in jurisdiction and functions, but they differ in
composition. The Inter-American Court of Human Rights consists of seven

129.205.0.246 on Tue, 24 Jan 2023 08:04:59 UTC
158 OKERE
judges, un
from all t
both Conv
to submit
ventions t
court.
As for enforcement of the judgment of the human rights courts, th

states parties to the American Convention "undertake to comply with th
judgment of the Court in any case to which they are parties" (art. 68). In the
case of the European Court, its judgment is transmitted to the Committee of
Ministers, which supervises its execution (art. 54).
These human rights courts constitute an innovation in international rela-
tions and reflect the higher degree of integration and cohesion attained by
these regional organizations, the cultural affinity which unites them, and th
community of interests shared by them.
African States, still jealous of their newly acquired national sovereignty,
have not yet come round to conceding to an international judicial organ the
arbitration of human rights questions.
IV. CONCLUSION
The African Charter on Human and Peoples' Rights is modest in it

tives and flexible in its means. Granted the susceptibilities of African s
political instability and their sensitivity to political interference, the
Charter has opted for the expedient of political and diplomatic settlem
disputes arising from alleged violations of human and peoples' rights i
of judicial arbitration by an international court of human rights as in t
under the European and American Conventions.
The African Charter, it is hoped, will go a long way to remedy the
comings of the O.A.U. Charter and the latter's credo of territorial int
and noninterference, which has provided despotic regimes a c
perpetrate acts of barbarism against their nationals. The obligation sti
in Article 62 for each state party to submit a report every other year
legislative or other measures taken with a view to giving effect to th
and freedoms recognized and guaranteed by the Charter is a very
and practical step. This will enable the commission to monitor the rhy
conformity with the terms of the Charter.
Since the African Charter has not yet come into force, one c
evaluate the efficacy of the system it inaugurates. Nevertheless, on th
of textual analysis, the procedure for the publication of the comm


129.205.0.246 on Tue, 24 Jan 2023 08:04:59 UTC
reports reveals a glaring weakness. After the investigation of an a

tion has culminated in a report by the commission, the decisio
publication of the report rests with the Assembly of Heads of
Government. Experience has shown that African heads of sta
themselves like a club or a trade union in their solidarity
ideological, and diplomatic considerations might well assume pr
and might well frustrate, the need for justice. Publication of the r
the attendant adverse publicity should constitute a potent an
sanction since the delinquent state would be seen to be on trial at t
African and other public opinion. But this report, for reasons
expediency, may never see the light of day.
The weakness of the African system is, at the same time, its str
flexibility of the procedure and the veto of the Assembly of Head
must be reassuring to most Africans, since they might be seen as a
might encourage the ratification and entry into force of the Char
Despite its imperfections, the adoption of the African Ch
Human and Peoples' Rights constitutes a significant milestone in th
toward protection and promotion of human rights in Africa.

129.205.0.246 on Tue, 24 Jan 2023 08:04:59 UTC

The Protection of Human Rights in Africa

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The Protection of Human Rights in Africa and the African Charter on Human and

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