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Analysing the Economic, Social and Cultural Rights Jurisprudence of the African Commission: 30 Years since the Adoption of the African Charter
Abstract
The African Commission on Human and Peoples'Rights (the Commission), established by the African Charter on Human and Peoples' Rights (African Charter), is a quasi-judicial regional body charged with the functions of promoting and protecting human rights in Africa, including economic, social and cultural (ESC) rights. The Commission was the third regional human rights body after the European and American regional bodies. It is empowered to 'interpret' Africa's key regional human rights treaty, the African Charter adopted in 1981. Although the African Charter protects ESC rights alongside other rights, the African Commission noted in its Resolution on ESC Rights in Africa, ACHPR/Res.73 (XXXVI) 04 (2004), that 'despite the consensus on the indivisibility of human rights, economic, social and cultural rights remain marginalised in their implementation' in Africa. The Commission observed that there is inadequate recognition by African States of this category of rights that results in the continued marginalisation of these rights, which 'excludes the majority of Africans from the full enjoyment of human rights'. Not surprisingly, the Commission has found several States in violations of ESC rights. One contributory cause for the continued marginalisation of this category of rights in Africa can be attributed to the lack of awareness of the Commission's jurisprudence on these rights. This article reviews selected key aspects in the Commission's jurisprudence on ESC rights since the Commission was inaugurated in 1987 focusing on the normative content; State obligations and obligations of non-State Actors; remedies and limitations to and derogations from ESC rights.
... In addition, the permitted limitations, namely "public need" or "general interest of the community", are framed broadly. Ssenyonjo (2011) argues that "there is no explicit mention of "prompt, effective and adequate compensation" prior to the compulsory deprivation of property". ...
... The Guidelines state that "compulsory acquisition of property must be piloted in a transparent manner, harmonising the public interest requirement with the right to private property or subject to the payment of fair compensation." This strengthens the argument that "property expropriations according to the African Commission should be subject to the payment of just compensation in order to strike a balance between the public interest requirement and the need to preserve the integrity of the right to property" (Ssenyonjo, 2011). ...
This paper is a philosophical examination on the legality of expropriating land without compensation in South Africa. In light of recent legal developments in South Africa, the National Assembly tabled and approved a resolution to amend section 25 of the Constitution in order to accommodate land expropriation without compensation. However, it is alleged that the National Assembly did not address any possible legal consequences that could affect the holders of real rights. It is for this reason that this paper seeks to assess the possible consequences of amending section 25. The paper used an international and regional law framework to undertake this analysis. Through using the doctrinal approach, the paper found out that it is legal to expropriate land without paying compensation to redress historical land inequalities. The value of the study is that it makes original contributions to knowledge, particularly in its innovative
approach to resolve the constitutional conundrum presented by the lack of funds for compensation for expropriation versus the imperative for land reform in South Africa. However, in expropriating land without compensation, South Africa should employ a considerably more mindful solution that will not crush financial sectors and jeopardise the lives of many.
... The main reason attributed to this bold complement to the Charter is its broadness in the recognition of human rights, particularly Economic, Social and Cultural Rights (ESCRs) (Swanson, 1991. For instance, one widely publicised praise for the African Charter is the equality it maintains with respect to ESCRs and civil and political rights (Ssenyonjo, 2011). The Charter is said to place ESCRs above civil and political rights (El-Obaid & Appiagyei-Atua, 1996), though the African Commission on Human and Peoples' Rights (African Commission or Commission) is, at the same time criticised for giving them less attention (Murray, 2001). ...
Deepfake, the manipulation of videos, audio and images using Artificial Intelligence (AI) technology, is popularly gaining attention in different areas of law since its first creation in 2017. Recent scholarships have considered its impacts on evidence law and proofs in courtrooms. Other areas of law that have been tested with deepfake include criminal law, torts, intellectual property and national security law, among others. In Africa, one of the challenges in addressing issues relating to deepfake is illiteracy. Most Africans are said to be ignorant of what deepfake is. Yet, with its nature and as a form of AI, deepfake impacts almost all known human rights since human rights are interdependent and interrelated. This paper seeks to introduce and underscore the impacts of deepfake on human rights in Africa, particularly the rights contained in the African Charter on Human and Peoples' Rights (African Charter). Although an analysis of the impact of deepfake on all the rights contained in the African Charter is outside the scope of this paper, the most impacted human rights-the right to dignity, privacy and information-will be discussed. As a prolegomenon (introduction) on this topic, the paper aims to highlight the human rights violations in the creation of deepfakes in Africa. The paper argues that while most deepfakes are created by private individuals, under the 'duty to respect' framework of human rights, both individuals and State Parties have obligations to respect human rights.
... 144 This view effectively emphasizes the traditional principle of intent and consent under international law. 145 Because the African Commission and Court have not been asked directly to pronounce the evolutive interpretation of a provision in the African Charter, when faced with such a question, they have to address how evolutive interpretation can co-exist with the traditional principle of States' intent and consent under international law. ...
This article regionalizes the discourse on the evolutive interpretation of human rights treaties to Africa. In it, three broad issues are discussed. First, it discusses the extent to which the African Human Rights Commission and Court may adopt the evolutive interpretation in interpreting the African Charter. Second, it examines the challenges to this interpretation method. Third, it discusses the counterarguments to the challenges. The article argues that two main groups of provisions may support an evolutive interpretation of the African Charter – the “any other status” clause in Article 2; and Articles 60 and 61, referred to as the “decompartmentalization articles.” It finds that the popular notion that evolutive interpretation is contrary to the traditional international law principle of intent and consent and the potential clash of evolutive interpretation with African values are the main challenges to adopting the evolutive interpretation of the African Charter. In turn, the article provides counterarguments to these challenges.
... Before the year 2001 the African Commission issued only a handful of decisions covering some aspects of the rights to property and the rights to health, education and work. 87 Indeed, the period has been described by Christopher ...
... Решения Комиссии, вынесенные по существу после 2001 года, уже в большей степени опираются на международное право прав человека при уточнении нормативного содержания экономических, социальных и культурных прав, предусмотренных Африканской Хартией прав человека и народов, стали длиннее и имеют более сложную аргументацию 261 . ...
Одной из тенденций современного международного права является сочетание стремления международного сообщества к универсализации, с одной стороны, и движение к регионализации, с другой. Эта тенденция нашла свое отражение и в области международно-правового регулирования труда: помимо Международной организации труда и ООН сотрудничество в трудовой сфере активно осуществляется на региональном уровне в рамках региональных международных организаций. На взаимодействие государств в сфере труда накладывают отпечаток цивилизационные особенности региона.
Сегодня бурно развивается такое глобальное явление, как международная трудовая миграция. Значимая доля миграционных потоков приходится на передвижение внутри региональных интеграционных объединений. Малоисследованным в России является международно-правовое регулирование трудовой миграции в АСЕАН и Африканском Союзе / One of the tendencies of modern international law is the combination of the international community's desire for universalization, on the one hand, and the movement towards regionalization, on the other. This trend is reflected in the field of international legal regulation of labour: in addition to the International Labour Organization and the United Nations, cooperation in the labour sphere is actively implemented at the regional level within the framework of regional international organizations. The interaction of States in the world of work is affected by the civilizational features of the region.
Today, such a global phenomenon as international labour migration is booming. A significant share of migration flows falls on movement within regional integration associations. Little studied in Russia is the international legal regulation of labour migration in ASEAN and the African Union.
This chapter questions the relevance of addressing the socio-economic rights of refugees and asylum seekers in Africa. It sets the tone in the introduction, which is followed by sub-arguments to (in)validate the foregoing notion. First, there is an exposition of the crucial notions that evaluate the relevance of addressing these rights. Second, an overview is provided of the challenges to the realisation of these rights and, thirdly, the possibility of working towards a balancing of socio-economic rights based on the right to equality is explored. Finally, a conclusion is reached.
Flowing from the discussion in Chap. 2, this chapter surveys important international and human rights treaties to determine if mechanisms exist that can support the construction of a specific right to research in Africa. Specifically, the chapter examines provisions of the Universal Declaration of Human Rights, the International Covenant on Economic Social and Cultural Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples Rights (ACHPR), Cairo Declaration of the Organization of Islamic Cooperation on Human Rights, and the European Convention on Human Rights (ECHR). Here, particular attention is given to the right to science and culture, including authorial right, the right to property, education, freedom of expression and access to information. The chapter concludes that while these rights address broad issues of access to information, they afford useful guides for the formulation of a specific right to research that will strengthen the position of researchers as users of copyright works and match authors’ rights protected under copyright and human rights regimes.
This research focuses on the challenges that women in rural Zimbabwe face in their efforts to access reproductive health services and rights, precisely maternal health and family planning. It documents the rural women's lived experiences as well as opportunities available for better access in the future. Recommendations include awareness raising at grassroot levels and ensuring accessibility of services.
This book is about the right to basic education and its impact on development in Africa. It focuses on the elusive subject of litigating the right to education by examining jurisprudence from select African countries and India. The project further analyses the various challenges that impede access to education, with the attendant lack of political will to curb corruption, and calls for the building of strong institutions and the involvement of both state and non-state actors in driving development via education. It also covers the scope for legal practitioners and policy makers, and supports institutional framework in realizing the right to basic education.
Azubike C Onuora-Oguno is Senior Lecturer in Jurisprudence and International Law at the University of Ilorin, Nigeria, and Researcher with the Centre for Human Rights, University of Pretoria, South Africa. He is also Solicitor and Advocate for the Nigerian Supreme Court. Dr. Onuora-Oguno has written widely on rights to basic education, children's rights, and other areas of law.
This chapter discusses the jurisprudence emanating from the various treaty bodies of the African Union. It seeks to build on the possible influence the jurisprudence would have on the quest for the realisation of the right to education before national judicial bodies.
This chapter analyses the extent and manner in which legislative policies, executive implementation and the judiciary have been able to help in advancing the right of access to basic education, considering that there is a proven gap in using existing national laws, policies and international legal obligations of governments to promote, fulfil and protect the right of access to basic education. The jurisdictions that are analysed are South Africa’s and India’s. In addition, the jurisprudence from quasi-judicial bodies in the African human rights system will also be perused alongside some decisions from the UK. The chapter also discusses the role of NGOs in advocating the right of access to basic education.
The African continent has been and continues to be at the epicentre of a global public health crisis. Each year millions of lives in the continent continue to be wasted from diseases preventable with relative ease such as malaria, diarrhoea, tuberculosis (TB), pneumonia, measles, HIV/AIDS, malnutrition, etc. It is the continent where individuals have the lowest life expectancy in the world by any standard of measures. Maternal, under-five and adult mortality rate is the highest in the world. Evidence also show that the continent, sub-Saharan region in particular, is the most food insecure part of the world where over one in four persons are undernourished. In spite of these staggering facts, Africa's average total expenditure on health is one of the lowest in the world. The continent hosts poorly resourced health infrastructures and systems. Ordinary individuals, especially vulnerable persons, in the continent have the least possible access to health care and the underlying determinants of health as well as to other related social protection mechanisms such as social security and health insurance. These all raise very serious issues with the obligations of the States Parties to ensure the right to health for everyone within their jurisdictions. This contribution has accordingly the following two main objectives. The first is to identify the underlying obstacles to the realization of the right to health in the continent. In this respect, it particularly asks the extent to which the alleged lack of resources can be said to explain the inaccessability of health care and the underlying determinants of health. The second is to describe the relevant legal, policy and institutional frameworks available at the African Union (AU) level with the view to assessing their effectiveness in ensuring the right to health. In this regard, it is asked if and to what extent the two principal human rights organs of the AU with remedial powers, the Court and Commission, are able to practically hold the Member States accountable for their gross failures in realizing the right to health. Overall, it emerges from the discussion that the violation of the right to health in the continent is only a mirror of persistent socioeconomic injustices mainly resulting from lack of systemic accountability. This suggests that it is impossible to ensure the effective realization of the right to health without first addressing the structural accountability deficits not just in the health sector but also in the respective socioeconomic and political systems of the Member States as a whole.
Can human rights bring social justice?
This collection of twelve essays explores the differences and similarities between social justice and human rights, providing divergent perspectives on whether and how human rights NGOs should pursue social justice.
Poverty, inequality and human rights
Worldwide socio-economic inequalities are mounting. While in absolute terms poverty rates are slowly going down, differences in income and wealth are growing. Deprived groups and protest movements mobilize to demand social justice. What do human rights have to offer them? This volume in Strategic Studies’ Changing Perspectives on Human Rights series focuses on conceptual and strategic differences and similarities between social justice and human rights.
Strategic decisions for human rights NGOs working on social justice
The twelve essays discuss different views on questions such as: Can human rights bring social justice? Can the human rights system speak out on political and economic structures that are seen as causing inequality? Should human rights organizations engage with political resource decisions? Would they risk being viewed as partisan if they engage with issues of redistribution or does their impartiality betray the poor and marginalized if they remain silent on system failures? Twelve essays provide diverging perspectives on the potential and limits of human rights for social justice and trade-offs in the strategic decisions of human rights NGOs.
Contributors to this Changing Perspectives on Human Rights volume
With contributions from Eduardo Arenas Catalán, Widney Brown, Sara Burke, Iain Byrne, Koldo Casla, Dan Chong, Ashfaq Khalfan, Rolf Künnemann, Doutje Lettinga, Jacob Mchangama, Samuel Moyn, Aryeh Neier, David Petrasek and Lars van Troost.
This contribution first introduces the main legal instruments relevant to the continental protection of human rights in Africa, then discusses the norms recognised (individual and peoples' rights, duties, etc) and thereafter turns to the regional institutional structures set up to achieve the implementation of the norms. This institutional overview focuses primarily on four important pillars of the African human rights system: the organs of the African Union, the African Commission on Human and Peoples' Rights, the yet to be established African Court on Human and Peoples' Rights and the newly established African Peer Review Mechanism.
This paper explores the health rights of prisoners as defined in international law, and the mechanisms that have been used to ensure the rights of persons in detention to realise the highest attainable standard of health. It examines this right as articulated within United Nations and regional human rights treaties, non-binding or so-called soft law instruments from international organisations and the jurisprudence of international human rights bodies. It explores the use of economic, social and cultural rights mechanisms, and those within civil and political rights, as they engage the right to health of prisoners, and identifies the minimum legal obligations of governments in order to remain compliant with human rights norms as defined within the international case law. In addressing these issues, this article adopts a holistic approach to the definition of the highest attainable standard of health. This includes a consideration of adequate standards of general medical care, including preventative health and mental health services. It also examines the question of environmental health, and those poor conditions of detention that may exacerbate health decline, disease transmission, mental illness or death. The paper examines the approach to prison health of the United Nations human rights system and its various monitoring bodies, as well as the regional human rights systems in Europe, Africa and the Americas. Based upon this analysis, the paper draws conclusions on the current fulfilment of the right to health of prisoners on an international scale, and proposes expanded mechanisms under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment to monitor and promote the health rights of prisoners at the international and domestic levels.
The African Charter of Human and Peoples' Rights came into force in 1986, and is unique in that it lacks a precedent. However, little scholarship exists analysing it as an operational system in practice. The success of the first edition of this book has led to this updated second edition. Contributors include experts who have been actively involved in the implementation of the Charter – commissioners, NGOs and academics. Offering a detailed evaluation of the Charter as a mechanism for the promotion and protection of human rights in Africa, the contributions cover the Charter's reporting system, the interpretation of different rights by the Commission, the prospects for the African Court on Human and Peoples' Rights and the role of NGOs. This authoritative and comprehensive volume will interest lawyers acting for government and non-governmental organisations, as well as academics and postgraduates. © Cambridge University Press 2002, 2008 and Cambridge University Press, 2009.
Over the years, the United Nations Committee on Economic, Social and Cultural Rights has indicated that the International
Covenant on Economic, Social and Cultural Rights (ICESCR) may have an effect beyond the borders of States Parties, meaning
that states may be bound by their obligations under the treaty when acting extraterritorially. The present contribution aims
at researching the use of the notion of the extraterritorial scope of the ICESCR in the documents adopted by the Committee,
such as General Comments, Statements and Concluding Observations. The article concludes that, although the Committee did introduce
some basic notions, it has never clarified at length, in-depth and systematically the notion of the extraterritorial scope
of State Parties’ obligations from a conceptual perspective. There is therefore a need for the Committee to further develop
the notion of the international scope and application of the ICESCR, for example, by holding a day of general discussion and
adopting a key document on this topic which should contain concrete guidance to States Parties. The present article provides
examples of questions and issues that are relevant in order to gain a more coherent understanding of the extraterritorial
scope of the ICESCR from a legal point of view.
In 1948 the Universal Declaration of Human Rights (UDHR) declared a wide range of human rights including economic, social and cultural rights as a ‘common standard of achievement’ for all peoples and all nations. At an international level, these rights were reinforced by a legally binding international treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, and more recently by the Optional Protocol to the ICESCR as adopted by the UN General Assembly on 10 December 2008, and opened for signature on 24 September 2009. Despite these positive developments, six decades after the UDHR, there are still questions regarding the status of economic, social and cultural rights as human rights in international law. In particular, four key questions regarding these rights, are addressed in this article: (1) what are the real human rights obligations of states parties to the ICESCR? (2) Are such obligations territorially limited or is there scope for extra-territorial obligations? (3) Are states permitted to derogate from (some) economic, social and cultural (ESC) rights during emergencies despite the fact that the ICESCR does not contain a derogation clause either permitting or prohibiting derogations? (4) Was it really necessary to adopt in 2008 an Optional Protocol to the ICESCR to provide for the competence of the committee monitoring the obligations of states parties under the ICESCR, the Committee on Economic, Social and Cultural Rights, to receive and consider communications alleging violations of any of the rights protected by the ICESCR? And should states parties to the ICESCR sign and ratify this Optional Protocol without delay?
"Access to water is a critical component in advancing the human rights of women. Although privatisation of water services continues to be pushed by donors such as The World Bank, the available information shows that privatisations are not increasing access to water for poor women. This paper examines the human right to water and why this right is critical for women and girls. It then discusses privatisation, and the tension between contractual obligations and respect for human rights. Finally, it explores some strategies and successes."
Shell Pays out $15.5m over Saro-Wiwa Killing', The Guardian
- See Pilkington
See Pilkington, E., 'Shell Pays out $15.5m over Saro-Wiwa Killing', The Guardian, 9 June 2009,
available at: www.guardian.co.uk/world/2009/jun/08/nigeria-usa.
supra note 65, para.165) provides that the rights and freedoms of each individual 'shall be exercised with due regard to the rights of others, collective security, morality and common interest
- Communication Nos
Communication Nos. 279/03 & 296/05, (2009), supra note 65, para.165. Article 27(2) provides that
the rights and freedoms of each individual 'shall be exercised with due regard to the rights of others,
collective security, morality and common interest'.
The African Regional Human Rights System: The African Charter', Penn State Law Review
- See Heyns
See Heyns, C., 'The African Regional Human Rights System: The African Charter', Penn State Law
Review, Vol. 108, No. 3, 2003–2004, pp. 679–702, at p. 691.