Special Coverage: 50th Session of African Commission

African Court judge says ACHPR must step-up efforts to protect Africans

Dr. Fatsah Ouguergouz (Pix:ACHPR)

A judge at the Tanzania-based African Court on Human and Peoples’ Rights has called on the African Commission on Human and Peoples’ Rights to implement its fundamental role in the African human rights system, that is, the protection of human rights. 

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