The Civil and Political Rights in African Charter
The African Charter on Human and Peoples’ Rights guarantees virtually all the established civil and political rights referred to by Karel Vasak as “the first generation of rights’.
Generational classification of rights must not be understood to mean that the earlier generation of rights falls into disuse giving place to a later generation, but that the earlier ones were recognized first, in point of time, before the later ones. The first generation rights are so firmly established and for so long that no serious government can claim to be unwilling or unable to enforce them. They incorporate the primordial rights of man and in the main, require governments to abstain from undue interference with them.
Behind some more exotic features of the African Charter, for instance peoples “rights and individual duties, lie the more ‘traditional’ civil and political rights which constitute the daily staple of regional, and in deed domestic, human rights mechanisms. It is also important to see that the lion’s share of the works of African Commission is devoted to the area of civil and political rights. This is not because the civil and political rights are more important than socio-economic rights. Rather civil and political rights do lend themselves more easily to supranational enforcement: their content is more clearly defined and demands of their remedies involve less infringement on the cherished concept of state sovereignty than socio-economic or peoples’ rights.
It is difficult to draw a hard and fast distinction between these two categories of rights. The only essentially political rights are those which enable an individual to participate in the exercise of political power and to gain access to public office in a country. As a rule these rights are enjoyed solely by nationals. Only the rights set out in the first two paragraphs of Article 13 of the Charter should therefore be included in this category. Other, purely civil rights are, nevertheless, also closely involved in the effective exercise of political rights. These include the rights to freedom of conscience, expression, assembly and association. Hence, a classification of the rights of the individual based on their civil or political nature can but be arbitrary. Therefore, with this caution in mind, we would rather prefer to discuss the scope and nature of specific rights generally recognized and guaranteed under this category. However, you should also be aware that this material will not go to the in depth analysis of the nature and scope of each rights recognized in the Charter for pragmatic reasons.
- The Right to Life and Integrity of Person (Article 4)
This is the first substantive right guaranteed in the Charter. Article 4 provides that:
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of is person. No one may be arbitrarily deprived of this right.
All international instruments emphasize the fundamental nature of the right to life, and its preeminence among other rights. The right to life has been observed to be characterized not only by the fact of being the legal basis of all other rights, but also by forming an integral part of all human rights that are essential for guaranteeing access for all human beings of all goods, including legal possession of those necessary for the development of their physical, moral and spiritual existence.
According to one writer, the individual’s right “to respect of his life” may be considered both as a civil right and an economic and social right. As a civil right, its sole counterpart will be a negative obligation of the states to refrain from any infringement of this or to prevent its possible infringement by a third party (duty of diligence). As an economic and social right, it will, on the contrary, entail a positive obligation of the state to ensure that the individual has an adequate standard of living by providing him, for example, with adequate food and medical care. Legally speaking, the right to life would thus appear to be a hybrid. However, the second aspect of the right can be adequately addressed under Article 16 of the Charter.
As regards the exact content or subject of the right to life, there are some open-ended issues in the ACHPR such as the expression ‘human being’, ‘arbitrary deprivation’, and ‘derogation’ aspect of the right. The African Commission has so far only ruled on the existence of violation of the rights under Article 4 without specifying the content of the right and the issue remains to be open. How the word ‘human being’ be used specially in determining the beginning and end of human life? The reply to this question has some important consequences for the legislation of such practices as abortion and euthanasia. Article 4 of the American Convention on Human Rights clearly guarantees the right to life “in general from the moment of conception.” So the position of African Charter seems not embark on this thorny topic and to leave the task of setting such matters to national legislation.
Article 4 is also some how different from the other instruments as regards its formulation of the permissible infringements of this right. It does not mention some exceptions to the right to life as capital punishment for serious crimes except the prohibition of arbitrary deprivation of the right. The Charter does not also define what constitutes arbitrary taking of life, neither has the commission yet given such definition. Does it refer to illegality, illegitimacy, injustice or inequity, unreasonableness, rule of law, due process of law or else? Therefore, it will be the task of the commission to clarify the limits of such terms of the Charter. One writer summarizes the prevailing international norm as:
It appears that the general understanding of arbitrary deprivation of life is extra-judicial killing which is well established in international law. The general consensus in the interpretation of the right to life in human rights instruments is that it is not derogable, except in certain circumstances judicially recognized or resulting from lawful acts of war or self-defense.
Therefore, though not mentioned in the African Charter, the right to life is not an absolute right given the internationally recognized norms on the interpretation of the right.
The African Commission has ruled on in a number of cases on the violation of the right concerned. It was in relation to three communications lodged in 1991 and 1992 against Malawi that for the first time, the African Commission concluded that there had been a violation of that right by a state party to the Charter. One of the communications alleged among other things that peacefully striking workers had been shot and killed by the police. The commission held that violation of Article 4 occurred when ‘peacefully striking workers were shot and killed by the police.’
In the communication lodged against Chad (1992), the Commission held that “The African Charter specifies in Article 1 that the state parties shall not only recognize the rights, duties and freedoms adopted by the Charter, but they should also ‘undertake . . . measures to give effect to them’. In other words, if a state neglects to ensure the rights in the Charter, this can constitute a violation even if the state or its agents are not the immediate cause of the violation. Thus, the Commission held that the actions could still be imputed to the state, it being responsible for ensuring the protection of the rights of those in its territory. Chad is, therefore, responsible for the violations of Article 4 for several accounts of killings and also disappearances which the government did not attempt to prevent or investigate afterwards.
This decision of the Commission is interesting. It recognizes the theory of Drittwirkung der Grundreht developed by German lawyers, according to which a state party to an instrument for the protection of human rights is responsible not only for violations of rights committed by its agents, but also for those committed by individuals (natural or judicial persons).
It was also in the tragic massacre/genocide of the Rwandans that the Commission found serious violation of Article 4. In its recent decision in the well known Ogoni case and its leaders including Ken Saro-Wiwa, the Commission held that there had been a violation of Article 4 of the African Charter by a state party (Nigeria) in relation to four communications alleging a number of violations to the detriment of two persons sentenced to death and eventually executed by the Respondent State despite the fact that the Commission had indicated provisional measures. Here is some important part of the Commission’s reasoning:
“Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of Article 4. The violation is compounded by the fact that there were pending communications before the Commission at the time of executions, and that the commission has requested the government to avoid causing any ‘irreparable prejudice’ to the subjects of the communications before the Commission had concluded its consideration. It is a matter of deep regret that this had not happened. The protection of the right to life in Article 4 also includes a duty for the state not to purposefully let a person die while in its custody. Here at least one of the victims lives was seriously endangered by the denial of medication during detention. Thus there are multiple violations of Article 4.”
In another recent decision (May 2000) against Sudan, the commission held that “denying people food and medical attention, burning them in sand and subjecting them to torture to the point of death point to a shocking lack of respect for life [and]… constitutes a violation of Article 4.”
Another important initiative of the African Commission regarding the right to life was the adoption of resolution in which it, inter alia, urged all states.
that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure the persons accused of crimes for which the death penalty is a competent sentence are afforded all the guarantees in the African charter.
and called upon all state parties
“that still maintain the death penalty to: a) limit the imposition of the death penalty only to the most serious crimes; b) consider establishing a moratorium on executions of death penalty; c) reflect on the possibility of abolishing the death penalty.
When we come to the right to integrity of the person (both physical and moral), it is also given protection together with the right to life under single provision, article 4.The right of every individual to physical integrity is generally interpreted as a right to the protection of the body from any violation not freely consented to, such as the removal of an organ from a living person or a mutilation as punishment. The recognition of this right is of particular importance in the African context given the prevalence of certain traditional practices such as clitoridectomy, excision or infibulations. These three types of female circumcision involve a painful procedure with sometimes grave, if not fatal, physiological and psychological consequences for the infant or adolescent undergoing it. Thus it constitutes the violation of physical integrity protected under Article 4.
There may be an apparent contradiction between this individual right and the practice of female circumcision as part of the tradition of African peoples as falling under Articles 20 (1), 22 & 18 (2) which makes it an obligation of the state to assist the family as the custodian of the traditional values recognized by the community. However, such conflict should be resolved in favour of protecting individual rights. This is what can be observed from the widespread practices, policies and laws of different African countries prohibiting such harmful practices. Article 61 of African Charter also refers to African practices consistent with international norms on human and peoples’ rights. Indeed, Article 21 (1) of the African Charter on the Rights and welfare of the Child shows firm stand of African states against harmful social and cultural practices. The same position is also held under the Protocol on the Rights of Women in Africa (Art. 5). Nonetheless, the challenge is the persistence of such practice in certain far from negligible parts of the African continent including Ethiopia.
- The Right to Dignity and Prohibition of Torture and Inhuman Treatment/ punishment (Art. 5)
Article 5 provides:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, in human or degrading punishment and treatment shall be prohibited.
This provision essentially protects dignity- the only right in the African Charter described as ‘inherent in a human being’- and then lists certain examples of exploitative practices which would constitute violations of this right. Guaranteeing the right of every individual to the respect of the dignity is an expression of the fundamental idea on which the concept of human rights is based. The expression of such guarantee which is now self-evident carries high significance in a continent which experienced colonization and slavery, the later still a reality in certain regions.
The individual’s right to recognition of his legal status may be considered as the first expression of his dignity, legally recognized as a subject-not as an object- of rights and obligations.
The second part of Article 5 prohibits in general all forms of exploitation and degradation of the individual. The list of prescribed forms of treatment is not exhaustive. The usual reference to ‘forced or compulsory labour’ is not included. Forced labour, like servitude, is akin to the exploitation of man and falls under this prohibition. Moreover, this provision should also be understood in light of ILO convention No. 105 on the Abolition of Forced Labour adopted on 25 June 1957 to which a significant number of African states have acceded. It should also be read in conjunction with Article 29 (2, 4 and 6) of the African Charter which lays down the individual’s duty to serve his national community, to strengthen social and national solidarity and to work to the best of his abilities.
As regards physical or moral torture and cruel, in human or degrading treatments, they are expressly prohibited by the African Charter. Like the other general human rights instruments, the Charter does not define them, the reason usually being the difficulty of defining them certainly.
Amnesty International provides the following on the point of difficulty of defining torture:
There is a good reason why the concept of torture resists precise and scientific definition; it describes human behaviour and each human being is unique, with his own pain threshold, his own psychological make up, his own cultural conditioning. Furthermore, torture is a concept involving degree on a continuum ranging from discomfort to ill treatment, to unbearable pain and death, and a definition must resort in part to qualitative terms which are both relative and subjective.
Still, we can seek for some assistance from the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (Art.1 (1)). The African system can also take some inspiration from the jurisprudence of European Court of Human Rights.
The African Commission has found the violation of Article 5 from a number of communications against member states. Certain aspects of imprisonment have constituted violations of Article 5 such as overcrowding, beatings, torture, excessive solitary confinement, shacking within a cell, extremely poor quality of food and denial of access to adequate medical care. In another case the Commission held that article 5 prohibits not only torture, but also cruel, in human or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his/her will or conscience. Nonetheless, in none of the above findings, the Commission did attempt to give meaning to those crucial terms used under Article 5. Therefore, it yet remains for the commission and now the newly established court to articulate as to what amounts to torture, cruel, in human and degrading punishments or treatment. There is nothing wrong to take lesson from the experiences of the other regional systems on the same topic from the point of view of universality of human rights.
- The Right to Liberty and Security of Person (Art. 6)
Under Article 6 of the African Charter
“every person shall have the right to liberty and to the security of his person. No one may be deprived of his freedom, except for reasons and conditions laid down by law. In particular, no one may be arbitrarily arrested and detained.”
The right to liberty and security of the person implies physical liberty of the individual in the society in terms of prohibiting unnecessary arrests and detention. In other words, no one should be dispossessed of his or her liberty in an arbitrary fashion. To the extent that infringements are justified, they may also be done only in terms of legal rules established in advance. Therefore, this provision requires the two conditions for limiting the right: the requirements of legality and absence of arbitrariness. This manner of understanding, which is also recognized under Article 9 of the ICCPR, limits the extensive application of the claw back clause under Article 6 of African Charter. However, unlike Article 9 (sub articles 2 to 5) of the ICCPR, Article 6 of ACHPR does not make it clear what the rights of the person arrested or detained are, and does not provide for any right to reparation in the event of illegal arrest or detention. Neither does it regulate the conditions of detention nor prohibit imprisonment for failure to perform a contractual obligation. Hence, once again there is a need to refer to international human rights standards as to the level of procedural guarantees of detained or arrested person.
The African Commission has, though suffers from particular reasoned argument, ruled on the violation of Article 6. In one of its decision, it indicated that a detention without any charge being brought was to be regarded as arbitrary. In a communication against Nigeria alleging a number of violations by the Government of Nigeria, the Commission held that ‘ a decree that allows the government to arbitrarily hold persons critical to the government for up to three months without bringing them before the court violates the right protected in Article 6.’ By this decision, the Commission indicated that a ‘lawful measure, or taken under a law, can, nevertheless, prove to be ‘arbitrary’ by virtue of its content. When considering the length of detention without trial, the Commission held that ‘three years’ detention without trial or even three months may be sufficient to violate Article 6. Similarly holding individuals indefinitely will also breach the article.
- The Right of Fair Trial [Article 7] 426
Article 7 of the African Charter provides that:
1) Every individual shall have the right to have his caused heard. This comprises:
a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.
b) The right to be presumed innocent until proved guilty by a competent court or tribunal;
c) The right to defense, including the right to be defended by counsel of his choice;
d) The right to be tried within a reasonable time by an impartial court or tribunal.
e) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committees. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
The concept of the right to fair trial is inevitably bound up with the concept of justice. It is also a fundamental right which guarantees the judicial protection of rights. It has also some link to the concept of rule of law. According to European Court of Human Rights ‘it is the only human rights whose effective respect is itself a condition for effective monitoring of the implementation of all the other rights established by international instruments concerned.’
The right to fair trial consists, as envisaged under Article 7 (a) of ACHPR, first and foremost, of the right of all individuals to appeal to competent national courts or tribunals. An important issue here is the actual meaning of the world ‘appeal’. Does it guarantee a right of appeal to a superior court from the decisions of lower courts or tribunals or merely the right to simply seek a judicial remedy at a first instance? The nature of the right and decisions/practices of the Commission is inclusive of both rights. Please read a lot of communications lodged against Nigeria alleging the violation of this right in the 1990s!
Article 7 (1) (b) lays down the right to be presumed innocent until proved guilty . . . Presumption of innocence as an aspect of the right to fair trial is a concept applicable only in criminal proceedings. It means that the general burden of proof must lie with the prosecution, or in terms more appropriate for civil law system, that the court, in its inquiry into the facts, must find for the accused in case of a doubt. Nonetheless, the practice in most African countries, according to Nmehielle, contradicts the concept culminating in the reverse principle whereby it becomes the burden of the accused persons to prove their innocence. The Charter also requires that the guilt of the accused be determined by a competent court or tribunal. Though not yet determined in the jurisprudence of the Commission, ‘competent court’ means one in which the judges must be duly qualified, meeting all the natural and legal qualifications; and one, which is adequate, suitable and capable of administering law. The reasoning is that the court must be independent and impartial, as well as separate from the other branches of government.
Article 7(1) (c) recognizes the right to defense, including the right to choose a counsel of his choice.’ The purpose of the guarantee of the right to representation is to ensure that proceedings against an accused person will not be taken place without adequate representation of the case for the defense. In addition, it ensures the equality of arms between the accused and the prosecution. The problem here is that the Charter does not make any provision in terms of state-provided legal assistance which is one of the avenues through which indigent persons can have access to legal representation.
Article 7 (1) (d) guarantees the right of a person to be tried within a ‘reasonable time’. The purpose here is to protect all parties to court proceedings against excessive delays. As can be seen from the experience of other regions, the guarantee underlines the importance of rendering justice without delays, which might jeopardize its effectiveness and credibility. The reasonableness of the length of time of the proceedings both in criminal and civil cases depends on the particular circumstances of the case. There is no absolute time limit. Factors that are always taken into account are the complexities of the case, conduct of the applicant and the conduct of the competent administrative and judicial authorities. From the decisions of the Commission, this impartiality under Article 7 (1) (d) is in close relationship with independence. Thus, a court or a tribunal must be independent of the executive and also of the parties to the case.
Finally, Article 7 (2) prohibits ex-post facto laws, and also makes provision against retroactive punishments. It further outlaws transferred punishment to any other person who is not the offender. Such prohibitions are clearly important in ensuring due process in criminal proceedings. The second arm of Article 7 (2) dealing with the personal nature of punishment is very relevant to the situations in Africa which is known for its customary rule of collective liability. Thus, it will go a long way to address the victimization of the relatives (immediate or extended) of alleged offenders if the later cannot be reached.
Here something to be raised in relation to the right to fair trial under the Africa Charter is that unlike other human rights instruments, the Charter fails to guarantee some other pertinent aspects of that right. For instance, the Charter does not make any provision regarding the right to public hearing (or in camera as the case may be) or the public pronouncement of the judgment. One writer notes the danger of this in that ‘dictatorial African governments are not unknown to establish secrete courts or tribunals, which conduct secret proceedings and pass secret judgments, the outcomes of which are usually predetermined’. In addition, the Charter does not make any provision on the right of an accused person to be assisted by an interpreter. This right may be very relevant in Africa where majority of the peoples are indigenous with languages different from the official language of many African states. Furthermore, the African Charter does not guarantee the right against self-incrimination, or freedom from double jeopardy, nor the right to compensation in violation of the right to fair trial or miscarriage of justice.
Being aware of the deficiencies of the Charter, the African Commission adopted a Resolution on the Right to Fair Trial on March 1992. The resolution goes beyond Article 7 of the Carter to provide for the guarantee of the right to legal aid for indigent persons, the right to assistance of a free interpreter, and the right to appeal to a higher court. Once again the resolution did not include the right to compensation for miscarriage of justice, freedom from double jeopardy and the right against self-incrimination. Therefore, on such and other areas of insufficiencies, it will be responsibility of the African Commission to apply international standards via the power vested in it under Articles 60 and 61 of the charter.
- Freedom of Conscience and Religion [Article 8]
Article 8 previous as follows:
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of those freedoms.
Read Article 18 of the ICCPR and compare with the above African Charter provision.
Unlike Article 18 of ICCPR, Article 8 of the African Charter does not expressly recognize freedom of thought. It is stated that thought is to some extent a process, whereas conscience or opinion, is the result of this process. There are two approaches on the protection of thought. The first line of approach is that freedom of thought does not need to be protected and that it is only when thought is expressed that such protection is necessary (downstream protection). This is ensured under Article 9 of the African Charter. The second approach asserts that freedom of thought needs to be protected for itself (upstream protection) quite apart from the question of its possible subsequent expression. To permit the free operation of thought process means authorizing the free expression of thought. Freedom of expression is thus the corollary of freedom of thought; the two freedoms are inherently indissociable as the effective enjoyment of them is the fruit of the dialectical relationship between them.
Therefore, the right of freedom of conscience includes freedom of thought. It generally means the right to hold a belief. This belief may be religious or otherwise. The essence of the freedom of conscience is to enable an individual to hold a thought or belief that is independent of a state’s or other entity’s control per se.
Although Article 8 formally guarantees the right to freedom of conscience and religion, it does not specify what is meant by the profession and free exercise of religion. Article 18 of the ICCPR is quite exhaustive on this point as it sets the possibility for the individual” either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” It also recognizes the liberty of parents to ensure the religious and moral education of their children in this field in conformity with their own convictions. Freedom to profess and practice one’s religion could include freedom to maintain or change one’s religion or beliefs.
The last point relates to the scope of the freedom laid down under ACHPR. The freedoms of religion and conscience may only be subject to limitations when they are envisaged in their external dimension; in their internal dimension, on the other hand, they would appear to be guaranteed absolutely. Thus, their limitation will be made based on law and order. Though this forms part of the ‘claw back clause’, it seems to balance between freedom to profess and practice one’s religion on the one hand, and the protection of individuals or society from religious or pseudo-religious practices. The African Commission has not yet passed any ruling on the content of the law as embodied by Article 8 except few declarations of the violations of the right. In its decision concerning communication 56/91c alleging the persecution of the Jehovah’s witnesses by the Government of Zaire (arbitrary arrests, appropriation of church property, and exclusion from access to education), it merely stated that such harassment constitutes a violation of Article 8. In dealing with a case against Sudan, the Commission has held that freedom of religion- in that case, freedom to apply Sharia law has to be exercised in away that does not violate the equal protection of the laws. Sharia trials may not be imposed, and everyone should have the right to be tired by a secular court if they wish.
In virtually all the cases actually decided, the Commission failed to define what constitutes violation of conscience, or of the right to freely profess and practice one’s religion.
- The Right to Information and Freedom of Expression (Art. 9)
Please read Article 19 of ICCPR and Article 9 of ACHPR and then make a comparison!
Article 9 of ACHPR provides that
“every individual shall the right to information. Every person shall have the right to express and disseminate his opinions within the law”.
Unlike the ICCPR provision, Article 9 of African Charter is drafted in general terms which misses some detail formulation of the right. The right of freedom of expression, while not above any other right by degree, has been identified as forming an essential basis for the existence and functioning of a healthy democracy in any society. The statement of the Inter-American Court of Human Rights in the Compulsory Membership Case on this right is persuasive. According to the court:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion . . . It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed . . . consequently, it can be said that a society that is not well informed is not a society that is truly free.
In one communication alleging the violation of this right by Nigeria, the African Commission stated:
Freedom of expression is a basic human rights, vital to an individual’s personal development and political consciousness, and participation in the conduct of public affairs in his country. Under the African Charter, this right comprises the right to receive information and express opinion.
The right to be given detailed references under Article 19 of ICCPR, namely, the freedomsd “to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
Therefore, effective application of Article 9 of ACHPR needs its correlation to the more elaborate universal instrument.
The other area of vagueness of Article 9 is the clause limiting the right, which only appears to apply to the individual’s freedom to express and disseminate his opinions, thus rendering ones right to receive information absolute. Nonetheless, this can not be logical interpretation as the right to information could be subject to limitation. The close correlation between freedom of expression and freedom of information points to the conclusion that the limitation laid down in Art.9 (2) logically applies to the whole Article.
Thus, the rights must be exercised ‘within the law.’ There is no further qualification in such limitation unlike the ICCPR (Art.19 (3)).
In this respect, the Commission invoked Article 27 of the Charter in support of its strict interpretation of the rights limitation clauses. In its view:
The only legitimate reasons for limitation to the rights and freedoms of the African Charter are found in Article 27 (2), that is, the rights of the Charter shall be exercised with due regard to the rights of others, collective security, morality and common interest.
Moreover, the African Commission found the violation of Article 9 of the Charter in a number of communications against Nigerian Military government- imprisonment of journalist, proscription of publication and confiscation of newspapers.
In relation to Article 9 (2), the Commission said:
According to Article 9 (2) of the Charter, dissemination of opinions may be restricted by law. This does not, however, mean that national law can set aside the right to express and disseminate one’s opinions guaranteed at the international level; this would make the protection of the right to express ones opinion ineffective. To permit national law to take precedence over international law would defeat the purpose of codifying certain rights in international law and indeed, the whole essence of treaty making.
The outline of the above and some other case-law of African Commission reveals that the Commission has sought to denounce all unwarranted violations of freedom of expression and freedom of the press in particular which without any doubt are crucial vehicles for the promotion and protection of human rights in African continent.
- Freedom of Association and Assembly [Articles 10 & 11].
Freedom of association and freedom of assembly are twin rights that are separately guaranteed by the African Charter. The nature of these rights make them interrelated. They share the objective of allowing individuals to come together for the expression and protection of their common interests.
Article 10 provides
“every person shall have the right to freely form associations with others provided he/she abides by the law. No one may be compelled to join an association, subject to an obligation of solidarity provided for in Article 29”.
Freedom of association involves the freedom of individuals to come together for the protection of their interests by forming a collective entity which represents them. These interests my be of political, economic, religious, social, cultural, professional or labour union nature.
Article 10 recognizes the two inseparable aspects of the same freedom, that is, the right to free association and the freedom not to join an association. But the right against forced association is made to be supplemented by obligations of solidarity under Article 29. Does this relate to all grounds under article 29 or to the concept of social and national solidarity which uses the same term? C. Heyns argues that article 10 (2) refers to Article 29 (4), in view of the explicit use of the word ‘solidarity’ in Articles 10 (2) and 29 (4) and the fact that reference is made to the ‘obligation of solidarity’ in the singular form in Article 10 (2). Do you agree with this line of interpretation?
Finally, the scope of the individual’s right to free association is guaranteed “provided that he abides by the law”.
what will be the test of such restrictive law? Make a reference to the formulation under Article 22 (2) of ICCPR? Again read the 1948 ILO Convention concerning Freedoms of Association and Protection of the Right to Organize (Conv. No. 87/48).
Nonetheless, it remains for the African Commission to clarify the content of the right under Article 10: working definition of association, whether this right includes professional associations and trade unions.
As has been observed, the right to freedom of assembly complements the right to freedom of association. Freedom of assembly, however, goes beyond the meeting of formal associations, and includes individuals associating to assemble in their right as individuals. Freedom of assembly envisages holding of public meetings, mounting of demonstrations through marches, picketing and processions. One limitation that is of international acceptance is that the assembly must be peaceful. The other grounds of limitation are expressly stated under Article 11 ‘which are to be determined by law.’ But the question remaining open is how far such laws will restrict the exercise of this right (issue of manner, time, and place)?
- Other Rights
You are invited to read those remaining rights of civil and political nature under the ACHPR and compare their substantive content with the ICCPR and other regional human rights documents. These rights include: freedom of movement and allied rights (article 12), the right to political participation (article 13), right to property (article 14), and other family rights (article18).