The African System Assessed: Scope and Effectiveness

In one line

The African system has the widest scope of any regional instrument, covering civil, political, economic, social, cultural, peoples' and environmental rights with no derogation clause and an open complaints procedure, and the weakest machinery, because its Commission may not publish without political permission and its Court is closed to individuals unless a State has separately said otherwise.

Scope: six strengths

One: every category of right in one justiciable instrument. Work, health, education and the family sit beside liberty and fair trial, supervised by the same body under the same procedure. Neither the universal system nor Europe did this.

Two: peoples' rights that have been decided. Articles 19 to 24 give equality of peoples, existence and self-determination, free disposal of wealth and natural resources with a remedy for spoliation, development, peace, and a general satisfactory environment. [The African Charter: Peoples Rights] shows they are not decorative.

Three: no derogation clause. The Charter provides no mechanism for suspension in an emergency, and the Commission has concluded that a State may not derogate at all, which is stricter than the Covenant, the European Convention and the American Convention alike.

Four: open access. Article 55's "other communications" imposes no victim requirement, so non-governmental organisations may complain, and article 56(6) requires only a reasonable period rather than a fixed limit.

Five: interpretive openness. Articles 60 and 61 direct the Commission to draw inspiration from international human rights law, including the Universal Declaration and the instruments of the specialised agencies, and admit African practices only where consistent with international norms. That is how the thin text of articles 7 and 9 has been filled.

Six: the Court's reach. It may decide a case under any human rights instrument the respondent has ratified, so it can give a binding judgment on a universal treaty that has no court of its own.

Effectiveness: six weaknesses

One: article 59. Confidentiality until the Assembly of Heads of State and Government decides otherwise, in a system whose only real sanction is publicity. The workaround through the annual activity report saved the jurisprudence and left publication dependent on a political decision.

Two: the article 34(6) declaration. Individuals and non-governmental organisations may reach the Court only against a State that has separately accepted that competence. Few have, and several have withdrawn after adverse judgments, so the trend is backwards.

Three: the clawback clauses. Rights guaranteed within the law or provided he abides by the law, most damagingly in article 9, put the burden on the Commission's interpretive rule rather than on the text. The rule is sound and the text should not have needed it.

Four: institutional dependence. The Commission's members may be re-elected by the governments that nominate them, its Secretary and staff are provided by the political organisation, and its budget sits in that organisation's regular budget.