African Court
judge says ACHPR must step-up efforts to protect Africans
Dr. Fatsah Ouguergouz (Pix:ACHPR) |
Dr. Fatsah
Ouguergouz, a
special representative of the African Court, was presenting a paper on “A Living and Evolving Instrument for the
Promotion and Protection of Human Rights in Africa” during a commemorative
colloquium marking the 30th anniversary of the
African Charter on Human and peoples’ Rights (the Charter) in Banjul, The
Gambia on October 23, 2011.
“The African
Charter, as augmented by its two protocols, is undeniably the most important
human rights protection instrument adopted (by and for) African States, it is
therefore the benchmark legal instrument in that area,” Dr. Ouguergouz said. “The importance of
the African Charter (Banjul Charter) and its statues as a benchmark resides in
the fact that it has been explicitly mentioned in the constitutive treaties of
certain African Regional Economic Communities, whose primary mission is to
promote the economic integration of the African Statues of their regions.”
He said: “I
have two main observations, first the international treaty to enshrine three
different categories of rights; civil and political (known as first generation
rights) economic, social and cultural rights (second generation rights) and
collective rights of solidarity (third-generation rights). My second
observation is that the Charter was the first international treaty to enshrine
the duties of the individual with such emphasis and detailed (3 articles and no
less than 11 paragraphs), to my knowledge, the only other standard-setting
treaties in this area are the Arab Charter on Human Rights (2004) and to a
lesser extent the American Convention on Human Rights (1969)”.
He argued
that the African Charter is rich from a conceptual standpoint, but relatively poor from a technical point of view, adding that this “relative poverty” can be witnessed in terms of the rights it
enshrine and the supervisory mechanism it
set out.
Dr Ouguergouz
further argues that the African Charter fails to guarantee certain rights enshrine
by the international Convention of Human Rights and the American and European
Conventions, particularly the right to privacy, the right to a nationality, the
right to vote in regular elections’, the right to found and join unions, equal
protection for legitimate and natural children, the right to marriage with full
consent of both parties, and the right to change religions.
“Unlike the
other two regional conventions, the African Charter contains no provision on
capital punishment, the prohibition of forced labour or the expulsion of
nationals. Most of the rights guaranteed are couched in fairly vague terms,” he
said. “The rights to a fair trail is not formulated specifically enough
(comparing Article 7 of the African Charter with Article 14 of second United
Nations Convention)”.
He further lamented
that the Charter dose not provide
for the rights of detainees to be
informed of the reason for their detention, of their right
to be rapidly brought before a judge,
of their
right to legally contest the grounds for their imprisonment, of their right to a public trial or of their right to appeal to a higher
jurisdiction.
He noted that
the African Charter contains no fewer than six articles on peoples’ rights
without defining what is meant by “people”. In other words, he concluded that the
“Charter dose not clearly identify the subject of the rights it guarantees”.
- Author: Modou S. Joof
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