Authored By: MORAPELO LEBOHANG RAMOLEKO
Abstract
The African human rights system offers a distinct framework compared to European and Inter-American systems by integrating three generations of rights—civil, political, socio economic, and cultural rights—into a single charter. It uniquely links human, individual, and peoples’ rights, emphasizing indivisibility and equal access to public property and services. Unlike others, it allows individuals, NGOs, and commissions to bring cases directly to the African Court, depending on state acceptance. The system also emphasizes individual duties comprehensively, reflecting African states’ commitment to broader human rights protection and enforcement mechanisms tailored to regional contexts and cultural considerations.
Introduction
The protection of human rights has become one of the most widely debated issues in international politics today, and this is owing to the fact that many individuals, groups, institutions and governments are increasingly becoming aware of the importance and significance of the subject of protecting human rights to the continued peaceful existence and sustainability of mankind. To this respect, the United Nations (UN) is seen therefore as the main driver of the internationalization process, reinforced in the principles outlined in the UN charter itself-recognizing that human rights are issues of universal concern and that the international community is entitled to immerse itself on such issues, and other significant human right instruments that are the bedrock for the operationalization of the institution. As such, the proper enforcement of international human rights principles has to be undertaken regionally for more efficiency and expediency in terms of the financial, cultural and philosophical aspects of the law, and based on the principles of international human rights instruments. Thus parallel to the universal system of human rights represented by the UN, there exist three other credible human rights systems in Europe, America and Africa, and there are increased efforts to establish such systems in Asia and the Middle East.1
Moving on to the comprehensive analysis on how the African human rights system differs from other regional human rights systems around the world, it is important to firstly note that, considering strictly from a normative aspect, the African charter on human and peoples’ rights is different from the charters that established the institutions in the European and inter
American systems of human rights, because it is not restricted to such narrow foundations as its predecessors. The charter incorporates the three generations of human rights, and creates a link between the concepts of human rights, individual rights, and peoples’ rights.2 As Okere noted, ‘It is however in the area of the machinery for the protection of the guaranteed rights that the greatest difference appears as between the African charter on the one hand and the American and European conventions on the other.’3
Based on his own observation, Okere noted that the difference between the African system and the European and inter-American systems is that the African charter provides for the diplomatic settlement of dispute and places less emphasis on the use of judicial arbitration unlike its European and American counterparts.4
Jurisdiction
There also exists differences in enforcement mechanisms of the three systems being discussed here including the fact that in the African and inter-American systems, the charter provides for the commission and the courts in these systems to be the main enforcement mechanisms, while in the European system, following the adoption of protocol 11 in November of 1998, the European commission as well as the former court of human rights were replaced with the European Court on Human Rights (ECHR). In many ways, there are notable similarities between the inter-American and African systems of human rights, as opposed to the European system which appears to be operating under some unique set of rules and guiding principles. For instance, the jurisdiction ratione materiae of the European court of human rights differs from that of the inter-American and African systems. In the European court, the court’s jurisdiction is restricted to matters that concern interpreting and applying the provisions and principles of the European convention and the protocols attached to it, and because the commission is no longer in existence, the court only considers cases directly submitted by individuals, states or groups who are victims of human rights violations. In the inter-American system, the jurisdiction of the court is much broader than that of the European court including interpreting and applying the ‘provisions of the convention as well as the provisions of the treaties concerning the protection of human rights…as well as a contentious jurisdiction, suitable for the trial of concrete cases, when some of the state parties of the American convention is alleged to have violated any of its precepts’.5 Unlike in the European system that currently lacks a commission, and individuals and other groups are allowed to refer cases directly to the court, the commission in the inter-American system is responsible for referring cases to the court, a duty that can also be performed by another member state as long as the state that is being accused of violating the principles of the convention previously accepted the jurisdiction of the court to act in this context.6
The case is similar in the African system where according to article 3 of the protocol to the African charter, the court is provided with a wide range of jurisdictional responsibilities in comparison with the European court. The responsibility of the African court includes the interpretation and application of the provisions of the charter, the protocols attached to it, and any other human rights instrument which has been ratified by the member states of the African Union. The commission in the African system also has a wide mandate including its promotional and protective mandates as well as the ability to act in its capacity to refer cases to the court, and creating an opportunity for the submission of reports by non-victims of human rights violations. In the African system, non-governmental institutions with observer status are also allowed to bring cases before the court in accordance with the provisions or article 34 (6) of the protocol to the African charter on human and peoples’ rights.7
Locus Standi
Moving on to the locus standi of the regional systems, in the African system, article 5 of the court protocol allows that only the commission, state parties and intergovernmental organizations can stand directly before the court, and a joint reading of articles 5 (3) and 34 (6) of the court protocol will provide an understanding that for NGO’s and individuals to apply directly to the court, the matter must involve a state that has previously accepted the court’s jurisdiction. However, in the inter-American system, only state parties and the commission are allowed to directly bring cases before the court and individuals can only lodge complaints via the commission to the court once the admissibility of the case has been established. Thus both systems are similar in the sense that they both encourage the submission of cases by individuals through the commission, but diverge to the extent that in the African system, the individual can decide to side – line the commission and apply directly to the court depending on the will of the state party. What is noteworthy however, is that the courts in the African and inter American systems are similar in terms of jurisdiction to the extent that they both allow for reports from non-victims of human rights violations through the commission or otherwise which makes them less limited in scope when compared with the European court.8
Originality
Moreover, a case can be made for the originality of the African charter and its protocols which could challenge the separation of civil and political rights from social, economic and cultural rights as seen in the European and inter-American system’s normative instruments, as well as that of the universal system of human rights. Right from the preamble to the African charter, it is explicitly stated that socio-economic and cultural rights cannot be dissociated from the first generation rights, and that for political and civil rights to be enjoyed, the second generation rights must also be satisfied. This portrays a statement from the African states and their understanding that the second generation rights are independent and indivisible as well. As long as we are still on the issue of the originality of the African charter, it is imperative to note that in consolidating their commitment to the incorporation of socio-economic and cultural rights in the charter, the African states have gone a step further to include the right of equal access to public property and services in article 13(3) of the ACHPR, which is not seen in the instruments of the other systems. Although there are rights guaranteed in the European and inter-American charters that are not seen in the African charter, the inclusion of individual rights in the ACHPR is another feature that establishes the originality of the charter from its predecessors. The charter dedicates a whole chapter to the duties imposed on individuals, which incidentally, shames the rather vague and meaningless obligations conferred on the individual in other regional and universal instruments. The European charter or conventions do not include such individual rights while the inter-American instruments do not ignore these duties, but refer to them in a single article which was so widely formulated that it is very difficult to comprehend the legal content of these individual duties prescribed in the charter.9 At the universal level, it is seen that there is the mention of individual duties in article 29 of the universal declaration of human rights, but this is seen in more general terms as compared to the comprehensive attention paid to individual duties in the African charter.10
Conclusion
In conclusion, from the differences discussed above, it is important to highlight the important contributions that the African human rights system has brought to the universal human rights framework which includes the incorporation of the three generations of human rights, and creates a link between the concepts of human rights, individual rights, and peoples’ rights and that on the part of locus standi, the individual can decide to side – line the commission and apply directly to the court depending on the will of the state party. On the other-hand, the African charter incorporates civil and political rights as well as socio-economic and cultural rights.
Lastly, as stated above, in the African charter, it is explicitly stated that socio-economic and cultural rights cannot be dissociated from the first generation rights, and that for political and civil rights to be enjoyed, the second generation rights must also be satisfied. It is imperative therefore to note that in consolidating their commitment to the incorporation of socio-economic and cultural rights in the charter, the African states have gone a step further to include the right of equal access to public property and services in article 13(3) of the ACHPR, which is not seen in the instruments of the other systems.
Bibliography
Books
ANITA OGECHI OBI, THE AFRICAN REGIONAL HUMAN RIGHTS SYSTEM: COMPARING THE AFRICAN HUMAN RIGHTS LAW SYSTEM AND THE EUROPEAN AND INTER AMERICAN HUMAN RIGHTS SYSTEMS WITHIN A NORMATIVE AND INSTITUTIONAL FRAMEWORK 70 – 71 (Eastern Mediterranean University) (2012)
6 (2) OKERE B, 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 156 (Human Rights Quarterly) (1984)
XI VALERIO DE OLIVEIRA MAZZUOLI, THE INTER-AMERICAN HUMAN RIGHTS PROTECTION SYSTEM: STRUCTURE, FUNCTIONING AND EFFECTIVENESS IN BRAZILIAN LAW 347 (Anuario Mexicano De Derecho Internacional) (2011)
International Instruments
American Convention on Human Rights
1 Anita Ogechi Obi, The African Regional Human Rights System: Comparing The African Human Rights Law System And The European And Inter-American Human Rights Systems Within A Normative And Institutional Framework (Eastern Mediterranean University 2012) 70 – 71.
2Ibid 78.
3 Okere B, ‘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’, (1984) 6 (2) Human rights Quarterly, 156.
4 Anita (n 1) 78.
5 Valerio de Oliveira Mazzuoli, The inter-American Human Rights Protection System: Structure, Functioning and Effectiveness in Brazilian Law, Anuario Mexicano de Derecho Internacional (2011) XI, 347.
6Ibid 79 – 80.
7 Anita (n 1) 81.
8Ibid.
9 Article 32 of the American Convention on Human Rights.
10 Anita (n 1) 86 – 87.
