Impact of the African Charter on domestic human rights in Africa

In the 25 years of its existence, the African Commission established itself firmly as the primary human rights body on the African continent. Through its progressive interpretation of the Charter, the Commission has given guidance to states about the content of their obligations under the Charter, and its provisions have inspired domestic legislation. In a number of countries, the Charter is an integral part of national law by virtue of the constitutional system in place, and in at least one state, Nigeria, it has explicitly been made part of domestic law through domesticating legislation.

The normative impact of the Charter has been significant. In its thematic resolutions, the Commission clarified the scope of rights and provided a yardstick for the development of domestic law, in particular in the ‘Principles and Guidelines on the Right to a Fair Trial’ and the ‘Principles of Freedom of Expression’. It urged states to adopt a moratorium on the death penalty, thus supporting the trend towards abolition in Africa. The principle that indigenous peoples are rights-holders under the Charter was clearly established. In its Advisory Opinion on the United Nations Declaration on the Rights of Indigenous Peoples, the Commission addressed the concerns of African states about this Declaration, and thus contributed to its eventual adoption by most African states. Through its active participation in the adoption of the Women’s Protocol, the Commission provided clarity about the rights of women in the African context, and provided invaluable guidance to African states. A process to adopt a Model Law on Access to Information in Africa is on-going.

The sessions of the Commission provide an important space for the articulation of issues that are neglected or silenced domestically. More and more, NGOs and NHRIs benefit from interactions at these sessions, and are informed, strengthened and better equipped to perform their functions. Engagement with the African human rights system shapes the agenda of these role players.

Even if the findings and concluding observations of the Commission are not formally binding, states take serious note of them. The Endorois decision, for example, led to an intensive national dialogue about the accommodation of indigenous communities in Kenya.

The missions undertaken to state parties sensitise and support continuing efforts at the national level to improve human rights and inspire legal or institutional reform. Commissioners acting as Special Rapporteurs also engage with states in order to address allegations falling within the domain of the Special Rapporteurs.

The Charter’s complaints mechanism provides an important avenue for recourse to complainants who could not find redress at the national level. The Commission’s findings have in a number of instances been implemented. In many instances, the finding of the Commission assisted in garnering international awareness and solidarity, as was the case in Nigeria during the Abacha regime.

National courts are increasingly influenced by and use the Charter and the Commission’s findings to assist them in interpreting national law. Prominent examples are the Constitutional Court of Benin, which in numerous case made reference to the African Charter, and in some applied it directly; and the Supreme Court of Lesotho, which relied on the African Charter together with other international human rights treaties in Molefi Ts’epe v The Independent Electoral Commission.

The findings of the Commission also reverberated in the jurisprudence of national courts outside Africa, in the judgments of regional courts (such as the case of Campbell v Zimbabwe, decided by the SADC Tribunal), and even the International Court of Justice (for example, in the case of Diallo (Republic of Guinea v Democratic Republic of the Congo).

 

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