The idea of drafting a document establishing a human rights protection mechanism in Africa was first conceived in the early 1960’s. At the first Congress of African Jurists, held in Lagos, Nigeria in 1961, the Congress adopted a declaration otherwise referred to as the ‘Law of Lagos’ calling on African governments to adopt an African convention on human rights with a court and a commission. However, at the time African governments did not make serious efforts to promote this concept.
The Charter establishing the Organisation of Africa Unity (OAU) imposed no explicit obligation on member states for the protection of human rights. The OAU founding Charter only required states parties to have due regard for human rights as set out in the Universal Declaration of Human Rights in their international relations. In spite of the absence of a clear human rights mandate, the OAU took bold steps to address a number of human rights issues such as decolonisation, racial discrimination, environmental protection and refugee problems. The continental organisation however ignored the massive human rights abuses wantonly perpetrated by some despotic African leaders against their own citizens. This was due largely to the OAU’s preference for socio-economic development, territorial integrity and state sovereignty over human rights protection, as well as firm reliance on the principle of non-interference in the internal affairs of member states.
At the first Conference of Francophone African Jurists held in Dakar, Senegal, in 1967, participants again revived the idea of the Law of Lagos on the need for a regional protection of human rights in Africa. In the Dakar Declaration, adopted after the Conference, the participants asked the International Commission of Jurists to consider in consultation with other relevant African organisations the possibility of creating a regional human rights mechanism in Africa.
The United Nations also facilitated a series of seminars and conferences in a number of African countries. The UN Human Rights Commission set up an ad hoc working group and adopted a resolution calling on the UN Secretary General to provide necessary assistance for the creation of a regional human rights system in Africa. These initiatives of the United Nations with a view to getting African states to consent to the adoption of a regional human rights convention failed. Participants at one of the conferences decided to set up a follow-up committee mandated to carry out visits to African heads of state and other relevant authorities on the need for an African regional human rights system. Subsequent to the committee’s visit to Senegal, the then president of Senegal, President Léopold Sédar Senghor, promised to table the proposition before the OAU Assembly at its next session.
In 1979, the Assembly of Heads of States and Government of the OAU meeting in Monrovia, Liberia, unanimously requested the Secretary General of the OAU to convene a committee of experts to draft a regional human rights instrument for Africa, similar to the European and Inter-American human rights conventions.
A conference of twenty African experts presided over by Judge Kéba M’baye was organised in 1979 in Dakar, Senegal. It is important to note that the work of the Expert Committee was greatly influenced by the opening address of the host president, President Senghor, who enjoined the Committee to draw inspiration from African values and tradition and also to focus on the real needs of Africans, the right to development and the duties of individuals. After deliberations for about 10 days, the Committee prepared an initial draft of the Charter.
As a result of the hostility of certain African governments to regional human rights protection in Africa, a conference of plenipotentiaries scheduled for Ethiopia to adopt the draft charter could not take place. This period was the most dramatic in the history of the Charter. The Charter project was clearly under threat. Amidst this strained atmosphere and at the invitation of the OAU Secretary- General, the President of The Gambia convened two Ministerial Conferences in Banjul, The Gambia, where the draft Charter was adopted and subsequently submitted to the OAU Assembly. It is for this historic role of The Gambia that the African Charter is also referred to as the ‘Banjul Charter’. The Banjul Charter was finally adopted by the OAU Assembly on 28 June 1981, in Nairobi, Kenya. After ratifications by the absolute majority of member states of the OAU, the Charter came into force on 21 October 1986. By 1999, the African Charter had been ratified by all the member states of the OAU.