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The African Charter on Human and Peoples' Rights
A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa
By Fatsah Ouguergouz
Preface by Mary Robinson, former UN High Commissioner for Human Rights; foreword by Salim Ahmed Salim, former Secretary-General of the Organization of African Unity; and postcript by Kamel Rezag-Bara, Chairman of the African Commission on Human and Peoples' Rights. Martinus Nijhoff Publishers, 2003, 1,016 pp., ISBN 90-411-2061-0
Reviewed by Abdulqawi A. Yusuf
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The year 2004 can assuredly be seen as a new and fundamental milestone in the construction of an African regional system for the protection of human rights. First, the 1998 Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court of Human and Peoples' Rights came into force on 24 January 2004. Second, it is expected that this important judicial body will be brought into operation by the heads of State and Government of the newly created African Union at their annual summit, to be held in July 2004 in Addis Ababa, Ethiopia. Third, the African Court was the missing element of an effective regional system for the protection of human rights, and its establishment marks beyond any doubt the beginning of a new era in the promotion of the rule of law in Africa. The coming into life of this long-awaited judicial body is a vivid testimony to the topicality and timeliness of the book by Fatsah Ouguergouz.
It is published at a time when African continental institutions have acquired stronger legal foundations, as a result of the adoption of the Constitutive Act of the African Union, which on 9 July 2002 replaced the Organization of African Unity (OAU). This Act grants the protection of human rights, the promotion of the rule of law and good governance a much more important place than the 1963 Constitutive Charter of the defunct OAU. According to its Article 3, two of the objectives of the African Union are to "promote democratic principles and institutions, popular participation and good governance" and "promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments".
The monumental study by Mr. Ouguergouz consists of a thorough and detailed legal analysis of the normative and institutional aspects of the African human rights system. It should be recalled that this system is based essentially on the African Charter—which was adopted on 27 June 1980 and came into force on 21 October 1986—as supplemented by the above-mentioned Protocol. Several commentaries and critical studies concerning the African Charter have been published, but a serious and comprehensive legal analysis of its contents has been missing. The exceptional merit of the author's work is that it constitutes the first comprehensive and detailed review of the substantive and procedural aspects of the African Charter and its Protocol, as well as of the problems arising or likely to arise from their practical implementation. This study indeed reveals the true normative scope of the regional system of human rights protection through a deep and methodical examination of the real or apparent innovations of both instruments. It does so through the eyes of a highly experimented international law scholar, whose theoretical analysis is enriched by a professional experience gained in the United Nations system, and at the International Court of Justice in particular, where he served for the last decade as Secretary of the Court.
The African Charter may be characterized as an original and innovative instrument in the field of human rights. It is, indeed, clearly distinguishable from other regional and universal legal instruments in this area, as it recognizes the "people" as the holder and beneficiary of such "third generation" rights or "rights of solidarity" as the right to development, peace and a satisfactory environment. It also makes a bold juxtaposition of: civil and political rights and of economic, social and cultural rights; individual and collective rights; and the rights and duties of the individual.
While it is true that the authors of the African Charter apparently tried to take account of certain realities specific to the African continent, this does not mean that they had yielded to the call of "regionalism" or "cultural relativism". Mr. Ouguergouz reminds us that in the African Charter it is, on the contrary, modernity and universality which triumph over tradition and regionalism, although the latter clearly find their place in its normative content. He correctly demonstrates that the African Charter is not only an instrument that can be read in a manner fully compatible with the standards laid down by the Universal Declaration of Human Rights, but also may be credited with a real "added value". As former High Commissioner for Human Rights Mary Robinson has put it in her preface to the book: "The author shows how the African Charter has managed to resolve the formidable dilemma of being specific, universal and effective at the same time."
The book gives us a vision of how human rights and the rule of law can actually be rooted in the African soil through the implementation of the African Charter. In the author's view, the Charter is somewhat an avant-garde or revolutionary legal instrument founded on existing or emerging universal cultural values, such as "solidarity" (between individuals, through the enshrinement of one's duties in parallel with his rights, between peoples, whether or not they form States and between States parties to the African Charter and States which are not, through the enshrinement of the third-generation rights: peoples' right to development, peace and a satisfactory environment). In Mr. Ouguergouz's own words: "Human society and the international community are somewhat like a chain, where the links are individuals or States; sooner or later, the weakness of even one of these links may well weaken the whole chain: is any injustice anywhere not a threat to justice everywhere? The whole point of solidarity is to strengthen the "weak links" in the "chain", making it tougher and more durable."
The author does not, on the other hand, overlook the shortcomings and flaws of the African Charter, pointing to what he calls its " remarkable technical poverty". Among the problems likely to impede its implementation, he singles out "the imprecise formulation of the individual rights, the emphatic recognition of the individual duties, the generality of the rights limitation clauses, the lack of any definition of the concept of 'people', the absence of a derogation clause from the rights guaranteed, and the relative weakness of the safeguard mechanism". Much depends, therefore, on the future work of the African Commission and the African Court, whose jurisprudence will undeniably have an integrating and interpretative function that may confer greater clarity and justiciability to the rights and duties enshrined in the Charter.
Despite its voluminous nature, the book is written in an easily accessible language and does not in anyway suffer from the excessively legalistic jargon that may be associated with similar scholarly works on international law. The author is therefore to be commended not only for the originality of his assessment of the contribution of the African regional system to the development of international human rights law but also for the clarity of his analysis. In sum, this is a book that should be read by all those interested in human rights, and by others involved in their study, promotion or protection, be they scholars, lawyers, diplomats or policy makers. It is, of course, mainly devoted to the African system of protection of human rights, but it offers also a very forceful and stimulating intellectual tour d'horizon of the development and evolution of international human rights law. |
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Abdulqawi A. Yusuf is Director Office of the International Standards and Legal Affairs at the United Nations Educational, Scientific and Cultural Organization and an associate member of the Institut de droit International. He is also the founder and general editor of the African Yearbook of International Law. |
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African heads of State agree that the Organization of African Unity (OAU) had served its purpose. After much collective brainstorming and decision-making, OAU officials issued the 1999 Sirte Declaration calling for the establishment of the African Union (AU). The 2000 Lome Summit adopted the AU Constitutive Act, and the road map for its implementation emanated from the 2001 Lusaka Summit. The Union was officially launched at the 2002 Durban Summit, when the First Assembly of the AU Heads of States convened.
Unlike the OAU, which was designed for, inter alia, eradicating colonialism and apartheid in Africa, AU focuses on integrated continental participation in globalization. Union strategists envision an Africa that is prosperous and peaceful, a dynamic force in the global arena driven by its citizens. AU objectives include: acceleration of political and socio-economic integration of the continent; promotion of peace, security and stability; establishment of necessary conditions for full participation in the global economy and international negotiations; advancement of Africa's development by promoting research, particularly in science and technology; and working with international partners to prevent disease and promote good health.
These are Herculean tasks for Africa, where 832 million inhabitants represent 13 per cent of the world's population but account for only 1 per cent of direct foreign investment and 2 per cent of world trade. Of the world's 50 least developed countries, over 30 are on the continent. Yet, the land mass holds 30 per cent of the world's mineral resources, 40 per cent of gold and 60 per cent of cobalt, with over 20 per cent of its continental area comprising forestry and biodiversity, among other natural resources.
According to AU Commission Chairperson Alpha Oumar Konare: "The Africa so much desired by the founders of the AU is conscious of its potential and determined to exploit it, particularly by pooling resources; an Africa critical of its own weaknesses and geared to actively participate in global trade; an Africa which cannot afford to wait until tomorrow to have its problems solved." AU is determined through its strategic plan to employ accountability and transparency while transforming institutions, politically, socially and economically integrating the diverse continent and implementing sectoral action. Three vital documents—Vision and Mission of the African Union, the 2004-2007 Strategic Framework of the AU Commission and Action Plans of Commission Departments—chart the course.
In his 25 May 2004 address to celebrants of African Unity Day, AU Chairman Joaquim Alberto Chissano pointed out that the continental organization is guided also by a commitment to affording African women deserved space in leading and developing Africa and its institutions.
—Fayth A. Ruffin
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