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Application of the African Charter on Human and Peoples' Rights by domestic courts in Africa

Published online by Cambridge University Press:  28 July 2009

Frans Viljoen
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Extract

The African Charter on Human and Peoples’ Rights1 (hereinafter the “African Charter” or “Charter”) was adopted by the Organisation of African Unity (OAU) Assembly of Heads of State and Government in 1981. It entered into force on 21 October, 1986, after a majority of OAU member states had ratified the Charter. At present, 52 of the 53 member states have become parties: the only non-ratifying state is Eritrea.

Type
Articles
Information
Journal of African Law , Volume 43 , Issue 1 , Spring 1999 , pp. 1 - 17
Copyright
Copyright © School of Oriental and African Studies 1999

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References

1 OAU Doc. CAB/Leg/67/3/Rev.5, reprinted in (1981) 21 ILM 58.

2 See Volkov, F. M. et al. (eds.), International Law, Moscow, 1990, 54.Google Scholar

3 Interview in (1996) Oct-Dec African Legal Aid Quarterly 45.

4 The Constitution of 11 December, 1990.

5 Pursuant to Loi 91–009 of 4 March, 1991, “Loi Organique sur la Cour Constitutionnelle”.

6 Art. 147 of the 1991 Constitution.

7 Decision 002/ of 26 June, 1991.

8 Specifically art. 13(2), which guarantees equal access to the public service.

9 Decision DDC 03–93.

10 Based on a personal perusal of the Court’s records in Cotonou, Benin, during April 1995.

11 Decision DCC 16–94 of 27 May, 1994.

12 Decree 260/MISAT/DC/DAI/SAAP of 22 November, 1993.

13 The minister “a empiété sur le domain reservé a la loi par articles 25 et 98 de la Constitution et 10 de la Charte Africaine des Droits de l’Homme et des Peuples”.

14 Decision DCC 10–94 of 9 May, 1994.

15 “Partie intègrante”.

16 Cases DDC 05–94 (art. 13(2) of the African Charter), DDC 06–95 (art. 13(2)), DDC 09- (art. 13(2)), DDC 10–94 (art. 10), DDC 11–94 (art. 7), DDC 16–94 (art. 10) and DDC 18–94 (art. 13(2)). Based on a perusal of records in the Constitutional Court Library, Cotounou, Benin, during 1995.

17 See in general the discussion by Lindholt, L., Questioning the Universality of Human Rights: The African Charter on Human and Peoples’ Rights in Botswana, Malawi and Mozambique, Dartmouth, 1997, chs. 6 and 7.Google Scholar

18 [1992] LRC (Const.) 623.

19 Ibid.

20 At 656d-e.

21 At 656h-i.

22 On the investigation of the Botswana Law Reform Commission and its conclusions, see Lindholt, op. cit, n. 17, 199.

23 Art. 15(1) prohibits any law which is discriminatory “either in itself or in its effect”.

24 Art. 2 of the Charter includes “sex” as one of the grounds on which the guarantees of the Charter may not be denied to any individual. The others are “race, ethnic group, language, religion, political or any other opinion, national and social origin, fortune, birth or other status”. The list in the Botswana Constitution is restricted to “race, tribe, place of origin, political opinions, colour or creed” (art. 15(3)).

25 Although the amendment came several years after the Unity Dow judgment, it is clear from the memorandum accompanying the amendment that it was adopted in reaction to the judgment (Memorandum on Citizenship (Amendment) Bill No. 9 1995, which quotes the Dow case). See Lindholt, op. cit., n. 17, 200. For a background of pressure on the government, see also Quansah, E. K., “Is the right to get pregnant a fundamental human right in Botswana?” [1995] 39 F.A.L. 102.Google Scholar

26 Emphasis added.

27 Student Representative Council, Mokpolole College of Education v. Attorney General of Botswana, Civil Appeal 13 of 1994, [1995] 3 LRC 447. For a case discussion, see Quansah, op. cit., n. 25, 97. See also Lindholt, op. cit., n. 17, 209.

28 See art. 11(1) of the 1992 Constitution of Cape Verde: “International law shall be an integral part of the Cape Verde judicial system, as long as it is in force in die international legal system”, as well as art. 11(4): International law “shall take precedence over all laws and regulations below the constitutional level”.

29 Answer to a question during interview, see African Legal Aid Quarterly, op. cit., n. 3, 14.

30 Ibid., 34.

31 Dankwa, E. V. O., “Implementation of international human rights instruments: Ghana as an illustration”, (1991) 3 ASICL Proc 57.Google Scholar

32 Ibid.

33 Ibid., 63.

34 [1993] 1 N.L.P.R. 73, suit 3/93, 30 November, 1993.

35 S. 7.

36 S. 8.

37 S. 21, which guarantees freedom of assembly including freedom to take part in processions and demonstrations.

38 S. 11, dealing with freedom of assembly.

39 At 82.

40 Writ 1/93, Supreme Court, judgment of 30 November 1993, per Archer, C.J., Francois, J., Sekyi, J., Aitkins, J., Wirebu, J., Bamford-Addo, J., And Hayfron-Benjamin, J.

41 The Ghanaian Court referred to the fact that the Constitution demands that a broad and liberal spirit of a democratic and pluralist society should prevail in the country (p. 11 of typed judgment). Art. 21(l)(f) of their Constitution provides that all persons have the right to information, subject to such qualifications as are necessary in a democratic society. The Court chose to seek the spirit referred to in Ghana law, rather than in art. 9(1) or 9(2) of the Charter. Art. 9(1) of the Charter grants an unqualified right to receive information. Art. 9(2) has a claw-back clause: everyone may express their opinions “within the law”. It is perhaps understandable that the Court did not seek to find the embodiment of a democratic and pluralist spirit in these two provisions of the Charter.

42 Observation made during interview, see African Legal Aid Quarterly, op. cit., n. 3, 11.

43 On the potential effects of the Charter on Malawi law, see Lindholt, op. cit., n. 17, chs. 6 and 7.

44 [1996] 1 LRC 1. Discussed by , T. Maluwa, “The role of international law in the protection of human rights under the Malawi Constitution”, (1995) 3 A.Y.B.I.L. 65–69.Google Scholar

45 The 1996 Constitution, then in force, provided in s. 2(l)(iii) that the “government and the people of Malawi shall continue to recognise the sanctity of the personal liberties enshrined in the United Nations’ Universal Declaration of Human Rights … ”

46 Cited by Maluwa, op. cit., n. 44, 68.

47 Ibid., 68–69.

48 See s. 211(1) of the 1994 Constitution.

49 [1995] 1 SA 51 (NmHC); [1994] 2 LRC 263 (Namibia, HC).

50 Noting that the provision for non-discrimination in the African Charter does not allow for any exception (at 86D; 302 I).

51 “All existing international agreements binding on Namibia shall remain in force, unless and until the National Assembly, acting under Article 63(2)(d) hereof, otherwise decide”.

52 “Unless otherwise provided by this Constitution or act of parliament, the general rules of public international law and international agreements binding on Namibia under this Constitution shall form part of the law of Namibia.”

53 At 86 G–H; 303 d. In its decision reversing the court a quo’s finding the Namibian Supreme Court did not make reference to the African Charter: Kauesa v. Minister of Home Affairs [1996] 4 SA 965 (NmSC).

54 S. 11(1)(b) of the Racial Discrimination Prohibition Amendment Act and Reg. 58(32) made in terms of the Police Act (RSA) 7, 1958.

55 This fact is also reflected in the proliferation of “non-official” human rights case reports, such as those in the Journal of Human Rights Law and Practice.

56 The Nigerian courts were also approached on bases other than the African Charter. In some judgments, judges showed a willingness to stand up to executive conduct, such as Akinsanya, J., in Abiola v. National Electoral Commission (1993) 1 NLPR 42, in which the High Court of Lagos State ruled that the previous president, Babangida, lacked the authority to annul the elections and instate an interim government.Google Scholar

57 See Nweze, C. C., “Human rights and sustainable development in the African Charter: a judicial prolegomenon to an integrative approach to Charter rights”, (1997) 1 Abia State University Law Journal 11–12.Google Scholar

58 Suit ID/599M/91, judgment of 31 October, 1991; see Falana, F., Application of Fundamental Rights in Nigeria, 1994, 7 (unpublished paper presented at workshop on Law, Legal Institutions and Human Rights in Nigeria, held in Lagos, Nigeria, 24–25 November, 1994).Google Scholar

59 Suit M/568/91, judgment of 31 January, 1992, High Court of Lagos State, unreported.

60 Quoted in Lester, A., “The Potential Relevance of the European Convention on Human Rights“, in Developing Human Rights Jurisprudence, vol. 4, London, 1992, 152.Google Scholar

61 Civil suit M/102/92, judgment of 5 May, 1992, unreported.

62 See Communication 87/93 (Constitutional Rights Project (in respect of Lekwot and six others) v. Nigeria).

63 See Communication 87/93 (Constitutional Rights Project (in respect of Lekuoot and six others) v. Nigeria).

64 At its 17th session the Commission decided to bring the file to Nigeria for a planned mission “in order to make sure that the violations have been repaired”. This mission took place 7–14 March, 1997, but the mission report has not been submitted yet (see 10th Annual Activity Report at paras. 21, 22).

65 Cap. 10 of the Laws of the Federation of Nigeria, 1990.

66 At 40 of the typed judgment.

67 At 44 of the typed judgment.

68 At 1 of the typed judgment.

69 Judgment reprinted in (1994) 4 Journal of Human Rights Law and Practice 250.

70 [1994] 1 LRC 376 (Nigeria, SC).

71 S. 42 of the 1979 Constitution.

72 At 385 c–d.

73 [1994] 6 NWLR 475; see also [1996] 1 C.H.R.D. 89.

74 Punch Nigeria Ltd v. Attorney-General (1996) 1 C.H.R.D. 46 and Concord Press of Nigeria Ltd v. Attorney-General (1996) 1 C. H. R. D. 47.

75 (1996) 9 NWLR (Pt. 475) 710.

76 At 747, quoted by Ojukwa, E., “Is Fawehinmi v Abacha a correct decision?”, (1997) 1 Legal Practice Notes: Human Rights Law 21.Google Scholar

77 For criticism of this finding, see ibid., n. 77.

78 Interview reported in African Legal Aid Quarterly, op. cit., n. 3, 47.

79 Ibid., 39.

80 S. v. Makwanyam [1995] 3 SA 391 (CC).

81 At par. 36, n. 52.

82 At par. 324, n. 221.

83 [1995] 3 SA 632 (CC).

84 At par. 21, n. 24.

85 At par. 40, n. 58.

86 [1996] 1 SA 984 (CC).

87 S. 11(1).

88 At par. 170.

89 See Case v. Minister of Safety and Security [1996] 3 SA 617 (CC) at par. 29, n. 41, referring to art. 9 of the African Charter.

90 S. 10.

91 The text is Cachalia, A. et al. Fundamental Rights in the New Constitution, Cape Town, 1994, 33–34.Google Scholar See also Potgieter v. Kilian [1996] 2 SA 276 (N) 314 D–E. See further the reference to the African Charter in Shabalala v. Attorney-General, Transvaal [1995] SA 608 (T), where Cloete, J., declined to look at any foreign or international law (at 642 J).Google Scholar

92 See, for example, AZAPO v. President of RSA [1996] 4 SA 671 (CC), which dealt with a constitutional challenge to the amnesty provisions in the Promotion of National Unity and Reconciliation Act, 34 of 1995.

93 In terms of the interim Constitution (Act 200 of 1993), ratified international agreements formed part of the laws of South Africa “provided Parliament expressly so provides and such agreement is not inconsistent with (the) Constitution” (s. 231(3)). The final Constitution provides (Act 200 of 1996) that an international agreement becomes law “when it is enacted into law by national legislation” (s. 231(4)).

94 See, for example, [1996] 3 SACLR 17 (CC).

95 Par. 50, n. 46 of the judgment.

96 Par. 75, n. 67 of the judgment.

97 See, for example, Brink v. Kitshoff [1996] 1 SACLR 69 (CC), Dispute Concerning Constitutionality of Certain Provisions of Gauteng School Education Bill [1996] 2 SACLR 117 (CC) and AZAPO v. President of RSA, op. cit., n. 92.

98 Köln, 1997.

99 [1990] LRC (Const) 757.

100 By means of the Constitution (Consequential, Transitional and Temporal Provisions) Act (16 of 1984), which took effect in March, 1988.

101 S. 5(1) of Act 16 of 1984.

102 At 763 a–c.

103 At 770 c.

104 [1991] LRC (Const.) 553.

105 For a case comment, see Coldham, S., “Case notes (Ephrahim v. Pastory: DPP v. Pete)“, [1991] 35 J.A.L. 205.CrossRefGoogle Scholar

106 per Nyalali C.J., Makame and Ramadhani, J.J.A., 565 g.

107 At 566 b.

108 At 568 e–f. The violation could also not be “saved” under ss. 30 or 31 in the Bill of Rights, because the provision was too broad (at 572).

109 African Legal Aid Quarterly, op. cit., n. 3, 42.

110 Ibid., 37.

111 [1993] 4 LRC (Const.) 221.

112 At 233 c–d.

113 At 233 c.

114 S. u. Ncube [1988] 2 SA 702 (ZS) (see the reference also to US courts at e.g. 718) and S. v. A. Juvenile [1990] 4 SA 151 (ZS).

115 1993 (1) ZLR 1 (H).

116 Retrofit v. Telecommunications Corporation [1996] (1) SA 847 (ZS).

117 At 856 G–H.

118 See, for example, the remarks by Gubbay, the present chief justice of Zimbabwe: “we have looked to precedential judicial decisions emanating from those jurisdictions whose reputation for human rights is highly regarded and, of course, the opinions of the European Court of Human Rights” ((1997) 19 HRQ 277 at 253).

119 This justifies the omission in the Namibian case Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State [1991] 3 SA 76 (Nm S).

120 Ninth Annual Activity Report Annex VII, 6.

121 See the “Protocol to the African Charter on human and peoples’ rights establishing the African Court on human and peoples’ rights”, adopted unanimously by the OAU Assembly of Heads of State and Government on 9 June, 1998, reprinted in (1997) 9 R.A.D.I.C. 953.

122 See, for example, there marks by Onalaja, J., in The Registered Trustees of the Constitutional Rights Project v. The President of Nigeria, above, n. 65, 46–47Google Scholar of the typed judgment: “Let me put on record that the ingenuity in the quintessence manner and dexterity of the learned counsel for the applicant/respondent has shed a new light and horizon on African Charter on Human and Peoples’ Rights in African jurisprudence [sic]. It has reflected the law and lawyer in the words of Dean Roscoe Pound as social engineers.”

123 See also the Commission’s recommendation at its 19th session in which it urged bodies in civil society “to initiate specialised and comprehensive training for judicial officers, lawyers at national and sub-regional level” (Ninth Annual Activity Report Annex VII, 7).