Modul 7

The human rights protection framework in Africa operates on the regional and sub-regional levels. Describe the overview of these systems, indicating how Regional Economic Communities  protect human rights and how they are linked with the regional level of protection.

African human rights protection operates on two levels: regional and sub-regional. Both levels are governed by intergovernmental organisations and are designed to reinforce national human rights protection in Africa.

Continental level: At the continental level, the African Union, which replaced the Organisation of African Unity (OAU), has played a central role in establishing standards and institutions to promote and protect human rights across the continent. Key treaties and legal frameworks form the foundation of this structure:

  • The African Charter on Human and People’s Rights (African Charter), adopted in 1981, is the cornerstone document in African human rights protection. It establishes core human rights principles and obligations for AU member states. 

  •  Other significant treaties include the African Charter on the Rights and Welfare of the Child (1990), the Protocol to the African Charter on the Establishment of an African Court on Human and People’s Rights (1998) and the Protocol to the African Charter on the Rights of Women in Africa (2005).

Key institutions at the continental level are both quasi-judicial and judicial institutions. Quasi-judicial institutions are bodies like the African Commission on Human and People’s Rights (African Commission), and the African Committee of experts on the Rights and Welfare of the Child. They monitor compliance and issue recommendations. However, these institutions lack binding authority , so their role is primarily advisory. Judicial institutions at the continental level are the African Court on Human and People’s rights (African Human Rights Court). It serves as the primary judicial body with the mandate to issue legal binding rulings on human rights cases.

The sub-regional level is characterised by the presence of Regional Economic Communities (RECs), which emerged in the 1970s with a primary focus on economic cooperation and integration. However, RECs have gradually embraced human rights as an integral part of regional stability and development. Organisations like ECOWAS (Economic Community of West African States), COMESA (Common Market for Eastern and Southern Africa), SADC (Southern African Development Community), and the EAC (East African Community) link economic integration, poverty alleviation, and human rights. They recognize that human rights and economic development are closely connected. Some of the key RECs involved in human rights protection include: Economic Community of West African States (ECOWAS): ECOWAS has established a comprehensive system for human rights protection, which includes: the ECOWAS Court of Justice, which can hear cases involving violations of human rights, including individual complaints against member states. The ECOWAS Human Rights Protocol, adopted in 2001, which commits member states to respect and protect human rights in line with international standards. Notably, the ECOWAS Court was the first international court to recognize basic education as a socio-economic right. 


Connection between continental and sub-regional levels: Although the relationship between the two levels are not formalised, there are significant areas of alignment and potential cooperation:

  • Shared norms and principles: Sub-regional bodies often draw on principles established by the African Charter and other AU treaties, which allows for harmonised standards across regions.

  • Complementary roles: Sub-regional mechanisms address human rights issues within their specific regions, thereby supporting and complementing the work of continental bodies such as the African Commission and the African Human Rights Court.

  • Potential for cooperation: While not fully realised, there is a potential for enhanced collaboration, as envisioned in the Protocol establishing the AU Peace and Security Council. Such cooperation could foster information-sharing, coordinated actions, and a more unified approach to human rights challenges across Africa.


The African Commission on Human and People’s Rights has played an active role in expanding the scope of human rights protections provided. Among the most important communications is the Ogoniland case that has contributed to the development of a wide array of rights. Indicate at least three scenarios, using the conclusions of this communication, where the Commission has established and/or extended human rights protections under the ACHPR.

  • Right to a healthy environment: The Commission’s findings in the Ogoniland case established that article 24 of the African Charter, which guarantees the right to a “general satisfactory environment favourable to their development”, requires states to take concrete measures to prevent pollution and ecological degradation.  This interpretation confirms that the right to a healthy environment can be enforced through the African Charter on Human and Peoples' Rights (ACHPR).

  • State responsibility for corporate actions: By holding the Nigerian government accountable for the environmental damage caused by the oil partnership in Ogoniland, the Commission established that states have a responsibility to regulate corporate activities within their territories to ensure the protection of human rights, including the right to a healthy environment. This conclusion expanded state responsibility under the African Charter on Human and Peoples' Rights (ACHPR) to include actions by private individuals or groups.

  • The right to health: The Ogoniland case showed a clear connection between environmental harm and the right to health. By finding that the oil consortium’s actions harmed the health of the Ogoni people, the Commission highlighted how environmental rights and the right to health are linked under the African Charter on Human and Peoples' Rights (ACHPR). This decision expanded the understanding of the right to health to include the right to a healthy environment as an essential part.


The OAU has been replaced by the AU which started functioning in 2002. Can you identify in detail the differences between the organisations’ purposes, functions and structure in Africa’s human right protection framework.


Purpose:

The OAU, created in 1963, mainly focused on political independence and unity after colonialism. Its charter mentioned human rights briefly, showing only a small commitment to this area. The OAU’s policy of non-interference in countries’ internal matters often made it hard to address human rights abuses within member states.

The AU, founded in 2002 to replace the OAU, marked a shift by strongly prioritising human rights, democracy, the rule of law, and good governance. The AU’s main guiding document highlights these as core goals, showing a stronger commitment to human rights than the OAU had.




Functions:

The OAU's approach to human rights was mostly limited and reactive. Its main success was adopting the African Charter on Human and Peoples' Rights in 1981, but it lacked strong ways to enforce this. The OAU’s response to human rights abuses was often weak due to its focus on respecting each country’s sovereignty and avoiding interference.

In contrast, the AU takes a more proactive and thorough approach to human rights. Setting up the African Court on Human and Peoples' Rights in 2004 and adopting new human rights laws, like the Protocol on the Rights of Women in Africa, show the AU's commitment to stronger human rights protection. The AU is also more active in promoting peace and security, recognizing that human rights and stability are closely linked.


Structure:

The OAU's structure offered limited support for human rights bodies. The African Commission on Human and Peoples' Rights, set up in 1987, was the main body for human rights, but its recommendations had little power to make states follow them.

The AU has a more detailed structure with several institutions focused on promoting and protecting human rights. The African Court on Human and Peoples' Rights has the power to make binding decisions, which helps enforce human rights more effectively. The AU also created the Peace and Security Council to focus on preventing conflict and addressing the causes of human rights violations. The Pan-African Parliament, though it currently only advises, is expected to play a bigger role in creating human rights laws and oversight in the future.


Human rights framework:

Under the OAU, Africa's human rights framework was mainly based on the African Charter on Human and Peoples' Rights. However, the OAU’s weak enforcement systems limited the charter's effectiveness.

The AU has strengthened and expanded this framework. The creation of the African Court on Human and Peoples' Rights provides a way to enforce human rights through legal decisions. The AU has also added more human rights laws, like the Protocol on the Rights of Women in Africa and the African Charter on Democracy, Elections, and Governance, showing a broader commitment to human rights. The AU has also introduced the African Peer Review Mechanism, which encourages countries to assess and improve their human rights practices, though participation is voluntary.