One unique aspect of the African Charter is its inclusion of group, collective or peoples’ rights as distinct rights in addition to civil and political rights and economic, social and cultural rights. The notion of peoples’ rights seems controversial, and raises a number of questions in the minds of international human rights scholars. Such questions include: what point is Africa trying to make? What is the definition of “people”? Does it mean that the rights of the individual have become subordinated to peoples’ rights?
In trying to answer the questions above in the context of African human rights concept, some African scholars have canvassed African traditional way of living in which communal relationship is emphasized. According to one view, “living in Africa means abandoning the right to be an individual, particular, competitive, selfish, aggressive, conquering being . . . in order to be with others, in peace and harmony with the living and dead, with the natural environmental and the spirits that people it or give life to it.” The predominant sentiment apparent in the above statement is that in Africa, the individual is totally taken over by the archetype of the totem, the common ancestor or the protective genius, and merges into the group. There is no doubt that the diverse cultures of Africa significantly identify group influence over the individual. The statement of the African Charter, however, goes further than this group identity. By providing for group rights, the Charter does not subordinate individual rights to group rights, neither does it remove the individual from being the subject of the human rights concept. What the Charter tries to do is to establish a link between the inalienable rights of the human person and of peoples in a contextual manner.
The contextual approach to human rights raises the issue of safeguarding, promoting and preserving universal rights and human values in societies with different political, social and cultural backgrounds. It touches upon the question of recognizing the very identity of diverse cultures, civilizations and peoples with due respect for fundamental and universal values of humanity. Similarly, the following preambular paragraph of the African Charter reinforces the relationship between peoples’ rights and human rights: “Recognizing, on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection, and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights.” Second, peoples’ or groups rights are not in conflict or in competition with human rights, as they are complementary concepts.
Some aspects of the notion of collective rights enshrined in the African Charter are strongly amplified by the U.N. Declaration on the Right to Development. Such endorsement of the principle of collective rights is indicative of their importance rather than their destructive tendencies. While it may be true that recent experiences and actual practices in different parts of the world have revealed what happens when a misconceived concept is misinterpreted and vehemently enforced, the concept of collective rights cannot be said to be fraught with such dangers as apartheid, or such others concepts that degrade the status of the human person. Van Boven rightly points out that the principle of the right to development, for example, is a notion of peoples’ right that is not destructive of individual human rights, but one that places peoples’ rights and human rights in mutual relationship as complementary concepts.
One does not contend the fact that there is no generally accepted definition of people, neither does the African Charter offer one. However, there is consensus among jurists that some working characteristics of “peoples” have emerged from studies made under the auspices of UNESCO. Such characteristics, among others, include:
- An enjoyment by a group of individuals of some or all the following common features:
(i) Common historical tradition;
(ii) Ethnic group identity;
(iii) Cultural homogeneity;
(iv) Linguistic unity;
(v) Religious or ideological affinity;
(vi) Territorial connection;
(viii) Common economic life.
2. The group on a whole must have the will to be identified as a people or the consciousness of being a people.
By choosing to create legal obligations out of peoples’ rights, the point that Africa is trying to make is that, just like other leading instruments, such as the American Declaration of Independence, the French Declaration of the Rights of Man and of the Citizen, the Universal Declaration of Human Rights, the African Charter is more than a legal instrument. It is also an instrument of liberation; and embodies human aspirations and goals, reflecting constitutive elements of justice. According to van Boven, this is more so, because the struggles for human rights and peoples rights are not only settled in the courts, but also and perhaps more decisively in political fora. Thus, instruments on human rights and peoples rights may function in an extra-legal dimension as a guarantee and as mechanisms to defend freedom. Particularly in the third world, they also serve as tools of the liberation for the deprived, the oppressed, the have-nots and victims of discrimination.
Peoples’ rights under the Charter span from Article 19 to 24. Article 19 guarantees the equality of all peoples and prohibits the domination of a people by another. Article 20 provides for the right of all peoples to self-determination. Article 21 guarantees the right of all peoples to freely dispose of their wealth and natural resources and to exercise several related rights. Article 22 deals with the right to development, while Article 23 deals with national and international peace and security. Finally article 24 guarantees the rights of all peoples to a satisfactory environment favorable to their development. Though the scope of each rights and the beneficiaries under each categories of the rights are broad and some times debatable, we will briefly discuss the basic feature of some of them.
- The Right of Self-determination
The right of self determination is conceptually provided for in Article 19 of the Charter, while specifically enumerated in Article 20. Article 19 provides that “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.”
Article 20 reads as follows:
- All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social; development according to the policy they have freely chosen.
- Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination of resorting to any means recognized by the international community.
- All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
The above Charter provision on the right of self-determination underscores the colonial experience and domination of Africa with a view of eliminating all vestiges of colonialism. The fact, however, that the Charter is a document enacted in post-independent Africa leaves one to wonder on the perceived application of the concept in the future. While Article 20 (2) and (3) reinforce opposition to all forms of colonialism, Articles 19 and 20 (1) are general guarantees against domination of any kind of peoples. Article 20 (2) not only emancipates colonized people, but also “oppressed peoples.” As has been rightly observed, the above provisions have left commentators wondering whether the principle of self-determination of “peoples” would apply to groups within sovereign African States who may wish to secede as was the experience in Biafra, Western Sahara, Katanga and Eritrea.
The African struggle for decolonization was essentially a struggle for the right of self- determination of African people to freely determine their political status and freely pursue their economic, social and cultural development. With the attainment of de jure independence of African States the quest for self-determination became reinforced as experiences in the above cited examples have shown. African States have individually, and under the auspices of the OAU, taken the position that self-determination does not apply outside the colonial context, because such post-colonial application of the concept will undermine African unity. The International Court of Justice (ICJ) in a case between Burkina Faso and Mali has endorsed this theory of African unity as a basis for not applying the principle of self-determination to groups within post-colonial Africa. The ICJ stated that
“the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by the peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice.”
There is no disputing the fact that African unity is indispensable to African development and would be the preferred option of all well meaning Africans. However, events all over African have shown that the domination experienced during colonialism, on basis of which Africa fought for independence, still pervades the continent. Eritrea, Rwanda, Western Sahara, Katanga, Anglophone Cameroon and post-Biafra domination in Nigeria are glaring examples. Some of these cases have shown that there are certain exigent circumstances where the principle of self-determination should be allowed to apply rather than a preference for the human carnage that went on (and still goes on) in most of these examples.
The African Commission is yet to find its bearing on the challenges posed by several of these collective rights. The Commission’s position on the right of self-determination is not different from the views expressed by African States on the issue. The first test case on self-determination that came before the Commission was Katangese peoples’ Congress v. Zaire. In that case, the people of Katanga submitted a communication under the auspices of Katangese Peoples’ Congress in 1992 requesting the African Commission to recognize the Katangese Peoples’ Congress as a liberation movement entitled to support in the achievement of independence for Katanga; recognize the independence of Katanga; and help secure the expulsion of Zaire from Katanga. The complaint alleged that the history of the Katangese people showed that its territory is separate from Zaire. The communication, therefore, called on the Commission to find that the people of Katanga were entitled to an independent and separate State.
In its deliberations on the communication, the African Commission identified Article 20 (1) of the African Charter as the applicable provision, as there were no allegations of specific breaches of other human rights. The Commission agreed that all peoples have a right to self-determination, but that there may be a controversy as to the definition of the peoples and the content of the right. The Commission identified that the issue in the case was not self-determination for all Zaireans as a people but specifically for the Katangese, but that whether the Katangese consisted of one or more ethnic groups was, for that purpose immaterial, and that no evidence to that effect had been adduced.
The Commission agreed that self-determination may be exercised in a number of ways, such as independence, self-government, federalism, confederalism, unitarism or any other from of relations that accords with the wishes of the people, but that it must be fully cognizant of other recognized principles, such as sovereignty and territorial integrity. The Commission vehemently maintained that it was obliged to uphold the sovereignty and territorial integrity of Zaire as a member of the OAU and a party to the African Charter. It ruled that in the absence of a concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question, and in the absence of evidence that the people of Katanga were denied the right to participate in government as guaranteed by Article 13 (1) of the African Charter, Katanga was obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire. For the above reasons, the Commission declared that the case held no evidence of violations of any rights under the African Charter; and that the request for independence, therefore, had no merit under the African Charter on Human and Peoples Rights.
It is clearly evident from this case that the African Commission does not intend to interpret the right of self-determination as long as there is the right to participate in the government of one’s country under Article 13 (1) of the Charter. Any other claim would appear to a majority of members of the Commission to be a threat to the territorial and sovereign integrity of an African State.
In view of the above decision, scholars may continue to wonder without end, the actual purport of Article 20 of the Charter. Interpreting the Article to apply only to foreign domination is contradictory of the clear language of the Article. The second and third paragraphs of the Article specifically identify colonized peoples, and to that extent could be said to apply to foreign domination. Paragraph 2 on the other hand, does not only identify colonized people, but also oppressed people. Oppressed people could well be within sovereign African states. In addition, paragraph 1 applies to all peoples, without specific reference to colonized people or foreign domination. In this regard, there is growing consensus that the right of self- determination is not limited to freedom from colonial domination, but extends also to contemporary post-colonial realities.
Be the above as it may, one would agree that there is a need for cautious application of the absolute principle of self-determination in view of the territorial and sovereignty issues at stake. Rather than dismiss every claim of the right to self-determination, the implementing machinery of the African system should adopt strict standards on the right, which would ensure that frivolous claims are not allowed to demean its procedure. The African Human Rights Commission ought to be open-minded enough to consider genuine complaints by genuinely oppressed groups within sovereign African states.
- Right over Wealth and Natural Resources (Art.21)
Article 21 provides:
- All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
- In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as an adequate compensation.
- The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
- States Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.
- States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation, particularly that practiced by international monopolies, so as to enable their peoples to fully benefit from the advantages derived from national resources.
The right over wealth and natural resources is a component right of self-determination, and has been so regarded since the adoption of the UN Resolution on Permanent Sovereignty Over Natural Resources. One could say that the drafters of the African Charter were inspired by the above resolution. In the 1952 resolution, the General Assembly recognized “that the under-developed countries have the right to determine freely the use of their natural resources . . . in order to be in a better position to further the realization of their plans of economic development in accordance with their national interests . . . .” This principle was one of the early marks of decolonization. During this period, developing countries asserted sovereignty over their natural resources during their struggle for political self-determination and economic development. They argued that sovereignty over natural resources was an essential prerequisite for economic independence and development, and therefore a cardinal component of State sovereignty. Today, the principle has become established as “a fundamental principle of contemporary international law.
A close reading of Article 21 of the Charter reveals that “peoples” and States are guaranteed this right to their wealth and natural resources. While it is the right of all peoples freely to use, exploit, and dispose of their natural wealth and resources, states have the right to exercise control over their natural wealth and resources, and in such a way that will eliminate the excesses of multinational corporations. This interpretation brings back the argument already made in the previous discussion on the right of self determination as to whether “peoples” here could be extended to groups within sovereign African States. It has been observed that the doctrine of permanent sovereignty arose in the context of relations between host States and transnational enterprises engaged in the exploitation of natural resources. As a result, the right of the State to legislate for the public good with respect to the natural resources and economic activities in its territory has become the most common construction given to the doctrine of permanent sovereignty.
The African Commission is yet to decide a case that borders directly on article 21 of the Charter. Some of the cases dealing with violation of personal freedom may have arisen from circumstances that could be construed as having their root in that provision. It is hoped that, when the commission or other adjudicative body gets the opportunity, it will take into consideration the reality of the times. The process of economic reforms that will follow in African countries in the millennium will definitely lead to legal reforms that ought to take into consideration the notion of the rights of people (groups within sovereign states) to enjoy the wealth and natural resources on their land, subject to reasonable state control. To be considered also, is the role of multinational corporations in state violation of human rights based on the exploitation of natural resources and similar activities.
- The Right to Economic, Social and Cultural Development (Art.22)
Article 22 of the African charter provides that:
1.all peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind; and 2. State shall have duty, individually and collectively, to ensure the exercise of the right to development.
The right to development has acquired the status of an internationally recognized right since the early eighties. The right has grown as a branch of international law. Keba M’Baye, the first president of the Supreme Court of Senegal and a judge of the International Court of Justice, is credited with first formulating the right to development as a human right in the early seventies during the 1972 Strasbourg Inaugural Lecture in which he elaborated upon the economic, legal, moral and political justifications for the existence of the right to development. The emerging recognition of the right was confirmed by the United Nations General Assembly Declaration on the Right to Development in 1986. This Declaration followed the adoption of the right to development by the general assembly as a human right in 1979.
As is normal in international law, the right to development has been a controversial subject, provoking lengthy debates as to its existence. For proponents of the right like M’Baye, there can be no human rights without development and vice versa. It is further argued that there is higher propensity to violate human rights in underdeveloped countries than in developed ones, thus drawing a correlation between positive protection of human rights to a higher level of economic development. In the other side of the coin, the argument is that the right to development is a mere expression of sentiments devoid of any legal validity.
The right to development has already come to stay as a human right, and therefore has to be developed, albeit progressively, to serve the general purpose of development. Generally, the right to development consists of the right of individuals to benefit from a development policy based on material and non material needs and to participate in the development policy. It also involves the collective right of a developing country to the establishment of a new international order. The general interpretation to be given to this dimensional approach is that in the end, the human being is viewed as the subject and not the object of the development process. On a practical level, there is a natural translation of the right to development into the right of communities, especially those of indigenous peoples, to develop their culture and maintain possession of their land and cultural resources in the face of economic development policies that threaten their extinction.
There is no doubt that the concept is quite controversial and its precise definition extremely complex. However, it is clear that the notion of solidarity, or international cooperation and shared responsibility for the welfare and prosperity of all, is the central basis for the realization of this new right. To this end, the Charter implies a progressive obligation of member states to ensure that while individual freedom is emphasized, economic, social and cultural development will be promoted.
The African commission has not had a chance to decide any petition on the right to development.
- The Right to Peace (Art.23)
On the right to peace, article 23 of the Charter states:
1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of Africa Unity shall govern relations between states.
2. For the purpose of strengthening peace, solidarity and friendly relations, states parties to the present Charter shall ensure that:
(a) Any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against the country of origin or any other state party to the present Charter.
(b) Their territories shall not be used as bases for subversive or terrorist activities against the people of any other state party to the present charter.
Article 23 (1) restates the principle of the preservation of international peace and security, as well as the principle of friendly relations among states, which the UN Charter provides for as some of its main objectives, and which also forms a basic foundation of the OAU. Apart from the restatement of the principle of international peace and security, the paragraph also makes it the rights of all peoples. Similarly Article 23 (2) prescribes two specific ways by which states parties would ensure peace and strengthen solidarity and friendly relations.
The question of peace as a human right, into which some obligations can also be read, is entirely novel, and began with the African Charter. Generally, the law of peace is part of the classical subdivision of the subject matter of international law. Thus, the principle of peaceful coexistence, peaceful change, and prohibition of coexistence, peaceful change, and prohibition of coercion – all find expression in a variety of national and international legal instruments. Apart from the provisions of Article 1 of the UN Charter, the right to peace has been the subject of debates and study by the UN Commission on Human Rights. These debaters culminated in UN General Assembly Resolution, which reaffirmed the right of individuals, states and all mankind to a life in peace.
According to Alston, despite the significant of the above instrument on the right to peace, the elements of the right have never been determined, and that, no effort has yet been undertaken to elevate the term beyond the level of generalities, or to allow it to develop into practical usefulness. While this observation may be correct, in terms of the practical realization of the right to peace, we must recognize the efforts at the UN level to define and develop the content and elements of the right. For practical purposes, however, it is difficult to see how Article 23 (1) of the African Charter can be properly articulated in terms of enforcing the right of all peoples to national and international peace and security. It is true that in Africa, peace and security have become increasingly of grave concern. The Charter does not contain enough contents to aid the enforcement of the right. The two situations in which states are obliged to ensure the achievement of peace, solidarity and friendly relations are not adequate. They limit the whole question of peace to ensuring that an asylee does not engage in subversive activities against his or her own country, or any other state party to the Charter; and provide a prohibition of the use of the territory of a Member State for subversive or terrorists activities. While these are inherent in the whole agenda of peace, they serve the notion of state sovereignty and non-intervention in the internal affairs of a member state of the OAU, which has been a long standing principle of the regional body, but which has stood in the way of human rights enforcement.
The African commission has not yet had a chance to consider a communication based on Article 23 of the Charter. The Commission has, however, adopted a number of resolutions on situation in Africa that threatened peace and security in various Member States and the continent at large. By the nature of Article 23, it would appear that states are in a better position to enforce a violation of the right than individuals, through the inter-state communications procedure.
The principle that the right to peace, and the right to live in peace, entail more than the obligation of states not to engage in aggressive war, is already firmly established international law. There are other possible extensions of the right to peace which involve related rights, duties and obligations, many of which are already implied in existing rights and guarantees. For example, the right of all peoples to participate in the decisions of their government regarding war and peace is implicit in recognized rights of political participation. Furthermore, the right of conscientious objection is already contained in the guarantee of freedom of thought and conscience.
The Right to Environment (Art.24)
Article 24 of the Charter provides that
all peoples shall have the right to a general satisfactory environment favorable to their development.
The first international large scale formulation of concern for the environment in a right- related posture was at Stockholm in 1972. Since then several efforts have been made to achieve international recognition for a clean and healthy environment. After more than two decades, the Stockholm conference was followed by the Rio Declaration. At the time of the Stockholm Declaration, environmental action was understood to be principally a matter of preventing pollution; and in developing countries was seen as a luxury to be afforded only after industrialization. As environmental issues became increasingly stressed, several national constitutions began to incorporate the right to the environment.
The concept of a healthy environmental is therefore, not new. However, the link between a healthy environment and human rights is a recent development. It has been observed that the suggestion to link human rights and the environment was made by Rene Cassin, who opined that human rights protection should be extended to include “the right to a healthful and decent environment, that is, freedom from pollution, and the corresponding right to pure air and water.” It was, however, the African Charter that gave the right to a healthy environment its international codification in a human rights instrument.
What exactly does the right to a general satisfactory environment as formulated in Article 24 of the African Charter mean? Ankuma has criticized the provision as vague, and thus subject to divergent interpretations. She, however, notes that the broad formulation of states’ obligations leaves room for flexibility, in such a way that it may be possible for states to adhere to their human rights obligations in accordance with their particular situation. There is no doubt that the manner in which the right to environment is formulated in the African Charter does not guarantee a definite interpretation in terms of the contents of the right. This may, however, be a blessing in disguise, if any interpretation to be given to the right takes cognizance of the realities of the situation in accordance with prevailing international law principles. In addition, the right to environment by nature cuts across civil and political rights and economic, social and cultural rights. It is said to have the characteristics of civil and political rights in so far as it requires states to refrain from activities that are harmful to environment, while on the other hand, it has a feature of economic, social and cultural rights in that it requires states to adopt measures to promote conservation and improvement of the environment. In all, the right to environment has different dimensions. The individual dimension is the right of any victim or potential victim of an environmentally damaging activity to obtain reparation for harm suffered, while the collective dimension involves the duty of the state to assist in cooperating internationally to resolve environmental problems.
The Africa Commission has not yet been given the opportunity to deal with Article 24 of the Charter as no complaints have been submitted, which allege the violation of satisfactory environment per se, neither has the commission taken any independent initiative to promote the right. Despite the lack of action on this right at the Commission, it is increasingly becoming important and relevant to Africa, especially after the toxic waste dumping of 1988 in some African countries by international corporations. After the discovery of the toxic waste dumps, the OAU took quick action to forestall future occurrences. The same year the OAU Council of Ministers passed a resolution condemning the export of toxic wastes to Africa, and emphasizing that it is a crime against Africa. This resolution was followed by an OAU Convention banning the importation of toxic waste into Africa. In addition, the African Economic Community Treaty concluded in Abuja, Nigeria on 3 June 1998 requires states parties to improve the environment and take steps against the dumping of toxic wastes.
It follows, therefore, that in interpreting the obligations enshrined in Article 24 of the African Charter, the primary responsibility lies with states parties to adopt measures that will effectively address environmental degradation. The right of the individual against the state is contingent upon the existence or otherwise of these measures, and where a demand for such measures results not in assistance but in the violation of other fundamental human rights of the individual. Individuals, in addition, should have the right in domestic law of private action against a direct violator of his or her right to a healthy environment.