African Charter on Human and Peoples' Rights 1981

Background

The African Charter on Human and Peoples’ Rights (ACHPR), which is also commonly referred to as the Banjul Charter, is an international instrument regarding the human rights and freedoms of persons in the continent of Africa, and is considered to be the African counterpart to the European Convention on Human Rights. It provides that persons have fundamental civil, political, economic, social and cultural rights, and contains 68 articles in total.

Why Introduced

The need for such a document was first recognized in 1979, when a meeting of the heads of states in Africa saw the creation of a resolution requesting the drawing and implementation of a general human rights instrument, which resulted in the ACHPR. Following several years of planning and drafting, a version which was approved that came into effect on the 21^st of October 1986. At current, there are 54 states which are party to the Charter.

Significantly, the ACHPR is unique in comparison to other continental human rights protection instruments, as its preamble makes specific mention of the need to ‘eradicate all forms of colonialism from Africa’. More controversially, the preamble also calls for the eradication of Zionism, that is the movement which desires the re-establishment of the Jewish people in the land which currently forms part of Israel, alongside the aided development and protection of a Jewish state, by undertaking to ‘eliminate colonialism, neo-colonialism, apartheid, zionism’.

THE ACHPR served to introduce a comprehensive human rights system to the African continent, following decades of conflict and strife between various groups, communities and states, and introduce a grounds for accountability on a supra-national level.

Aim

Many of the express rights provided for in the ACHPR are typical of human rights charters, for instance, it is provided that all persons have the right to freedom from discrimination, the right to equality, the direct right to life, the right to have dignity, freedom from slavery, and freedom from inhuman treatment, the right to due process and a fair trial, the right to freedom of religious and cultural beliefs, the right to freedom of association, the right to freedom of assembly, the right to freedom in political association and participation, inter alia.

The ACHPR also created the African Commission on Human and Peoples’ Rights who were tasked with promoting and interpreting the contents of the Charter, and are currently headquartered in Banjul, Gambia, the location which gave rise to the nickname ‘the Banjul Charter’.

In several ways the ACHPR fails to provide as extensive a protection as is found in European and American human rights instruments, for instance lacking a direct recognition of the right to privacy, or the right to vote, inter alia. However, it ought be noted that some argue such rights are granted indirectly through more general overarching rights, such as the right to political participation, an approach approved by the African Commission in SERAC v Nigeria (2001). Significantly, the ACHPR also contained greater protections than its counterparts in some areas, for instance containing provisions for the protection of group rights (also known as collective rights or third-generation rights) alongside provisions for the protection of the rights of individuals. Per such rights, families are entitled to protection from the state, ‘peoples’ (in the plural) may enjoy a right to equality, the right to self-determination, the right to the free disposition of their wealth and resources, the right to development, the right to have peace and security and the right to the existence of a peaceful and appropriate environment in which to live and work.

Changes

The Charter helped establish the African Court of Human and Peoples’ Rights, by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights, which was adopted in June 1998, and became effective as of the 25^th of January 2004. The Court is empowered to make authoritative and legally binding decisions on humans rights claims across Africa, a move which has been much lauded by commentators. Its first judgment was delivered in 2009 on Michelot Yogogombaye v. The Republic of Senegal, to a positive international reception.

Notably, the Charter also introduced a state reporting mechanism to facilitate the making of complaints and enquiries regarding the ACHPR, which has been very positively received and is viewed as reducing the ability of states to ignore human rights violations whilst justifying this via reference to national sovereignty.

Key Sections

Per Article 2, all persons are entitled to enjoy the rights found in the charter, regardless of any disparity:

‘Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.’