Regional Protection of Human Rights: African and American Mechanisms

The African Charter of Human and Peoples’ Rights (The African Charter) is the foremost legal instrument when one is determined to elaborate this issue on an African setting. The African Charter was adopted in 1981 by the then operative The Organization of African Unity. The Charter entered into effect in 1986.

The Charter consists of economic, social, cultural rights as well as those civil and political rights. According to the first Article of the African Charter, States parties thereto pledge to recognize the rights, duties and freedoms set forth therein and undertake to take all measures related to legislation or of other nature, with a view to increasing the effectivity of the Charter. The second Article comes up with a serious non-discrimination clause. According to this Article “(e)very individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”

The civil and political rights are to be found between the third and the sixteenth Articles of the Charter. Article 3 foresees the equality before the law principle. Article 4 explicitly states that “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right”, whereas Article 5 stresses the human dignity. Article 5 also prohibits all kinds of exploitation, degrading and inhuman punishments and treatments. Article 6 of the Charter bans arbitrary detention and arrest. Right to fair trial and that ever-significant presumption of innocence are among the rights and freedoms touched upon by the 7th Article of the Charter. Article 8 expresses verbs deal with the freedom of religion and conscience. Article 9 states, “every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.” According to these Articles, every individual shall have the right to assemble freely with others.

The first actor created for the better execution of the rules available in the African Charter is the so-called Banjul Commission. The Commission consists of 11 members. These members are elected by the African Union Assembly. The Assembly considers equitable geographical and gender representation in electing the members of the Commission. Members of the Commission are elected for a six-year term and are eligible for reelection (The Commission Website). Given the delicate nature of their task, the members of the Commission are expected to preserve their independence from their own States. They are expected to discharge their obligations in their personal capacity and not as representatives of their respective countries.

The mandate of the Commission stems from the 45th Article of the Charter. The Article offers a list of the obligations and responsibilities of the Commission. According to this, the functions of the Commission shall be:

“1. To promote Human and Peoples’ Rights and in particular:

(a) 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 with human and peoples’ rights, and should the case arise, give its views or make recommendations to Governments.

(b) To formulate and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislations.

(c) Co-operate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.

2. Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter.
3. Interpret all the provisions of the present Charter at the request of a State party, an institution of the OAU or an African Organization recognized by the OAU.
4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.”

The then-functioning Organization of African Unity (OAU).The OAU is now a defunct international organization. It was succeeded by the African Union. The original legal text of Article 45 still refers to OAU but all these remarks should be interpreted as relevant to AU.

The tasks of the Commission may be roughly classified in two. Firstly, the Commission has a task of promoting the idea and the cause of human rights, which has an information-sharing and way-paving nature. Secondly, the Commission is entrusted with the task of reviewing whether the rules have been observed properly and whether human rights have been respected in due manner. This second aspect of legal scrutiny which displays a protective quality and nature in relation to human rights is strikingly reminiscent of the functions of the European Court of Human Rights, notwithstanding some considerable differences in practice.

Informative and promotional tasks of the Commission as delineated by Article 45 includes, among others, to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights. The Commission is further asked to organize seminars, symposia and conferences. These and similar activities will help the Commission to tackle its obligation to disseminate information as to human rights.

According to Article 47 Within three months of the receipt of the communication, the State to which the communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter.

The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. (Art 50, African Charter)

According to Article 56, communications relating to human and peoples’ rights referred to in 55 received by the Commission, shall be considered if they:

1. Indicate their authors even if the latter request anonymity,
2. Are compatible with the Charter of the Organization of African Unity or with the present Charter,
3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity,
4. Are not based exclusively on news discriminated through the mass media,
5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,
6. 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
7. 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, or the Charter of the Organization of African Unity or the provisions of the present Charter.

The then-functioning Organization of African Unity (OAU) decided to establish a working group in 1994, the aim of which was to study the idea of the establishment of a Human Rights Court to prevent violations of human rights and to augment the protective mechanisms. This group remained active until 1998.

The Court is composed of 11 Judges, who are expected by the Protocol to have high moral values, high professional recognition and experience. The Protocol orders the judges of the Court be elected for a period of six years. These may be re-elected only once.

It is the objective of the Court to complement the protective mandate of the African Commission on Human and Peoples’ Rights and fulfill its own function with a view to safeguarding human rights. The Court’s main objective is to stop the occurring the violations of human rights, if any and to remedy the ones that have already been committed.

The Court shall adopt such provisional measures as it deems necessary a) In cases of extreme gravity and urgency, and b) when necessary to avoid irreparable harm to persons.

Essential parts of judgments have been determined by the 61st Article of the Rules of the Court:

1. (E)very judgment of the Court shall state the reasons on which it is based.
2. The judgment shall indicate the names of Judges who have taken part in the deliberations.
3. The judgment shall be signed by all the Judges and certified by the Presiding Judge and the Registrar. It shall be read in open Court, due notice having been given to the parties.
4. Subject to article 28(3) of the Protocol, the judgment of the Court shall be final.
5. The judgment of the Court shall be binding on the parties.

The Organization of American States (OAS) was established by the Charter of OAS signed in Bogota, Colombia in 30 April 1948. OAS determined as its main objective, to provide cooperation and coordination in different areas and to become a platform that gets its members to apply peaceful methods for the settlement of disputes among them.

In the year 1959, steps were taken to establish an Inter-American Human Rights Commission (IACHR). This was followed by the conclusion of the legal arrangements providing a mechanism for the operation of this IACHR in 1960 and thus the IACHR was established. The main objective of the Commission was to promote and protect human rights in the American hemisphere.

Only the States Parties to the Convention and the Commission shall have the right to submit a case to the Inter-American Court of Human Rights.

The Rules of Procedure determines that if no specific ruling on reparations and costs has been made in the judgment, the Court shall set the date and determine the procedure for this deferred part of the decision.