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Download the Guide to the African Human GUIDE TO THE African human rights system This Guide to the African human rights system has been conceived as an accessible GUIDE TO THE and informative introduction to the human rights system established under the auspices of the African Union (AU). This Guide provides an overview of developments related to the African Charter on Human and Peoples’ Rights, its supervisory body, the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, as well as the African Charter on the Rights and Welfare of the Child and its supervisory body, the African Committee of Experts on the Rights and Welfare of the Child. This version of the Guide is launched on 27 June 1981, commemorating the date, 40 years earlier, on which the African Charter was adopted. The year 2021 African human rights system also marks 15 years since the African Court became operational. The Guide aims to both chart the most salient historical developments and provide an accessible introduction to the African human rights system, and is continuously revised. It has been prepared by the Centre for Human Rights, Faculty of Law, University of Pretoria, in collaboration with the African Commission. Two earlier versions of the Guide appeared in 2011 and 2017. The Centre for Human Rights, which in 2021 celebrates 35 years since its establishment in 1986, is both an academic department and a non-governmental organisation (NGO). It enjoys observer status with the African Commission. The Centre presents academic programmes and engages in research, advocacy and training on human rights, with a specific focus on Africa. Its flagship programmes are the Master’s in Human Rights and Democratisation in Africa and the African Human Rights Moot Court Competition. For more information on the Centre for Human Rights, visit www.chr.up.ac.za This guide is also available in an open-access electronic format: www.pulp.up.ac.za 1981 – 2021 Pretoria University Law Press Celebrating 40 years since the adoption of the PULP African Charter on Human and Peoples’ Rights www.pulp.up.ac.za 1981 – 2021 ISBN: 978-1-920538-97-2 PULP GUIDE TO THE AFRICAN HUMAN RIGHTS SYSTEM Celebrating 40 years since the adoption of the African Charter on Human and Peoples’ Rights 1981 - 2021 2021 Guide to the African human rights system - Celebrating 40 years since the adoption of the African Charter on Human and Peoples’ Rights 1981 - 2021 Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: Pinetown Printers, South Africa To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 [email protected] www.pulp.up.ac.za Cover design: Yolanda Booyzen This guide has been prepared by the Centre for Human Rights, Faculty of Law, University of Pretoria, in collaboration with the African Commission. ISBN: 978-1-920538-97-2 Contents List of abbreviations iv Cause for celebration v A. The African Charter on Human and Peoples’ Rights and further standards 1 B. The African Commission on Human and Peoples’ Rights 15 C. The African Court on Human and Peoples’ Rights 57 D. The African Charter on the Rights and Welfare of the Child 75 E. The African Committee of Experts on the Rights and Welfare of the Child 81 Bibliography 104 List of abbreviations ACHPR African Commission on Human and Peoples’ Rights AHRLR African Human Rights Law Report AHSG Assembly of Heads of State and Government AIDS acquired immune deficiency syndrome AU African Union CAL Coalition for African Lesbians CEDAW Convention on the Elimination of all forms of Discrimination Against Women ECOWAS Economic Community of West African States FGM female genital mutilation HIV Human Immunodeficiency Virus IDP internally displaced persons LDA Lunatic Detention Act LGBTI lesbian, gay, bisexual, transgender and intersex NGOs non-governmental organisations NHRI national human rights institution OAU Organisation of African Unity PLHIV persons living with HIV SADC Southern Africa Development Community SERAC Social and Economic Rights Action Centre UN United Nations iv A cause for celebration The year 2021 is one of celebration, despite the difficult circumstances brought about by the COVID-19 pandemic. In 2021, it is 40 years since the Assembly of Heads of State and Government of the Organisation of African Unity (OAU) adopted the African Charter on Human and Peoples’ Rights on 27 June 1981, in Nairobi, Kenya. The adoption of the African Charter represents a drastic curtailment of the principle of ‘non-interference in the domestic affairs’, which was a pillar of the 1963 OAU Charter. Most commentators regard the drafting and adoption of the African Charter as Africa’s response to the human rights abuses of the mid to late 1970s in Uganda, Equatorial Guinea, and the Central African Empire – and the reluctance of the OAU to criticise the leaders of these states or intervene in any other way. The incumbent heads of state in those three countries all lost power in 1979. At the same time, the ‘second wave of democratisation’ reached African shores, exemplified by Ghana (where the military in 1979 agreed to ‘full democratization’) and by Nigeria (where President Obasanjo in 1979 handed power to a democratically elected government, a setting in motion a process that culminated in the adoption of the 1979 Constitution). Against this background, African leaders put in place the Charter as a bulwark against the recurrence of such atrocities, and as a means to ensure that there would ‘never again’ be OAU inaction in the face of serious human rights violations in its member states. While the Charter was adopted 40 years ago, in 2021 we also mark 35 years since its entry into force. It took just over five years for a simple majority of OAU member states to become party to and be bound under the African Charter. Today, with only one African Union member state outside the fold, the African Charter is the continent’s most widely ratified treaty. The Charter’s entry into force on 21 October 1986 is arguably an even more significant milestone, as it draws our attention to the unfulfilled promise of state v parties to give effect to the provisions of the Charter in their domestic law and practices. The African Court on Human and Peoples’ Rights also marks a momentous moment in its growth. Fifteen years has expired since the first Judges were elected in 2006, and the Court stared operating. Since then, the Court has developed a robust case-law. For us at the Centre for Human Rights, the year has an additional significance, as we celebrate 35 years of our existence. In many ways, the Centre has evolved hand in hand with the African regional human rights system. Over these years, we have been privileged to engage with and play a role in various aspects related to the three institutions making up the system. The Centre enjoys observer status with the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. It has been supporting aspects of the mandate of special mechanisms of the African Commission, in particular the Special Rapporteur on the Rights of Women in Africa (through the development of reporting guidelines under the Protocol to the African Charter on the Rights of Women in Africa, and General Comments) and the Special Rapporteur on the Right to Freedom of Expression and Access to Information in Africa (through the development of the Model Law on Access to Information in Africa). Since 1992, the Centre for Human Rights organises the African Human Rights Moot Court Competition in partnership with a host university, in a different African country each year. Teams of students argue a hypothetical case before benches of law lecturers and human rights experts as if they were before the real African Court on Human and Peoples’ Rights. This year marks the 30 years of this Competition. This Guide is an example of our interest and abiding faith in the value of human rights at the regional level in Africa. It also signals our appreciation for the collaborative relationship we have enjoyed with these three institutions. We trust it will be a tool for greater awareness, appreciation and use of the African human rights system. This is the third iteration of this Guide, which first appeared on the occasion of the 30-year celebration of the adoption of the Charter, in 2011, now 10 years ago. Another edition appeared in 2017. This updated, revised and expanded of the Guide has been made possible by the contributions of Trésor Makunya Muhindo, vi Publications Coordinator at the Centre, and the students on the Master’s in Human Rights and Democratisation in Africa programme (Olum Lornah Afoyomungu, Ruddy Fualefeh Morfaw Azanu and Davina Murden). The Centre acknowledges their contributions, together with those who contributed to the previous editions. Lizette Herman, Publications Manager at PULP, was responsible for the attractive and functional layout. Frans Viljoen Director, Centre for Human Rights, University of Pretoria Pretoria, 27 June 2021 The year 2021 is an important historical milestone in the African human rights system as it marks the 40th anniversary of the adoption of the African Charter and the 15th anniversary of the operationalisation of the African Court on Human and Peoples’ Rights.
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