The African Charter and its relationship with other legislations

At the dawn of independence in Africa, most states in Africa became what could be termed “predatory states”, because of their wholesale violations of human rights in their respective countries. Many African leaders used naked and brutal force against their own people. One example of such brutal leaders was Idi-Amin of Uganda. Due to the incessant human right violations in the African continent, some scholars believe that a veritable response to human rights violation anywhere is the establishment of a proper human rights framework.

In 1961, in Lagos, Nigeria, some African scholars met in Lagos for a conference called the conference of African jurists. They raised the issue for the first time on the need to have a human rights framework for Africa with a court and commission to address human rights violations. The declaration from this conference is known as the law of Lagos. Despite the call by the African jurists, in 1963 when the OAU was formed, the issue of human rights was not at the forefront for the organization. The main focus of OAU was on decolonization of the African continent, amongst other things. The whole OAU emphasizes respect of human rights in terms of relationship with other nations, but ignores human rights at the domestic sphere. The attitude of the OAU is based on the fact that it focuses on equality of states, noninterference in domestic affairs of other nations and the independence of states. That is, the OAU’s perspective was that all countries are equal, and countries can not interfere in what goes on in other countries even when there was gross violation of human rights.

However, at the first meeting of francophone African jurists held in Dakar, Senegal in 1967, the issue of the “law of Lagos” came up again on the need for a human rights instrument in Africa to safeguard against human rights violation. That is, the conference reemphasized/reechoed the “law of Lagos”.

After so much deliberation and mobilization on the need for a continental human rights charter, in 1979, at the meeting of African heads of government in Monrovia, Liberia, there was a unanimous decision for a committee to be set up to prepare the first draft of the African Charter on Human and People’s Rights. The Secretary General was to assemble a committee of experts for that purpose. A twenty-person Committee was formed and was headed by judge Keba

Mbaye. After deliberation of about ten days, a draft of the African charter was produced. Before the deliberation, the then President of Senegal, Leopold Senghor, told the committee that they should draft an African Charter on Human and Peoples’ Rights which draws great inspiration from the values and culture of the African people. The said charter, he proposed, should be fashioned after the European and Inter-American conventions, however, it should still reflect the real needs of the African people, most especially their right to development.

After the draft, in 1979, some states were protesting against the African Charter, and the African Charter staggered. The Secretary General of the OAU, through an invitation by the president of The Gambia, organized ministerial meetings in The Gambia to discuss the final draft of the African Charter. At the meeting in Banjul, Gambia, the final draft of the African Charter was written. It is based on this that the African Charter is referred to as the Banjul Charter. At the 18th session of the African heads of state and government in Nairobi, Kenya, the African Charter on Human and Peoples’ rights was adopted on the 28 of June, 1981.

On 21st October, 1981, the first African State ratified the African Charter. The state is Mali. On the 21st of October, 1986, the African Charter came into force. Because the African Charter came into force on 21st of October, 1986, this day is known as the African Human Rights day.

The African Charter is the terraformer upon which the African Human Rights system is based. That is to say, the African Charter is the source of all other African Human Rights instruments. The Banjul Charter is an African Specific document to respond to human rights problems bedeviling the African people. It is a homegrown document which is filled with the values, culture, tradition and the spirit of the African people. It is a document which attempts to take Africa from the path of human wrongs to human rights.

In a nutshell, the African Charter is a document that attempts to glocalize the global human rights conduct. This is based on the fact that while the concept of human rights is universal, it must be contextualized based on the relative circumstances of the people which it is meant to apply to.

The African Charter came to deemphasize on the globalization of human rights, but instead emphasizes on the glocalization of human rights.

The UDHR was only witnessed by four African countries: Egypt, Liberia, Ethiopia and South Africa. South Africa abstained from ratification. However, the UDHR missed out some fundamental values of the African People. The African Charter has four specific features.

The indivisibility of rights. The African Charter states this position in its preamble, and this position was later echoed in the Vienna declaration. In Serac v Nigeria, paragraph 68 further establishes the fact.
The second special feature of the African Charter is that it provides for no derogation, even in times of war. It only allows limitations. Paragraph 68 and 69 of Media Right Agenda v Nigeria. Article 27(2) is the only limitation provided for the rights.
Recognition of peoples’ rights. Article 19-24 of the African Charter and the case in point is Endorois v Kenya, paragraph 155.
The charter provides for imposition of duties on both states and individuals. Article 27-29 provides for duties. Article 26 provides for one of the duties of states.

The African Charter has been ratified by 54 countries, which includes all African countries, although Morocco has withdrawn its membership from the African Union. The last country to ratify the Charter was South Sudan in 2013.

Questions to note.

The African Charter has added nothing new to the international human rights law agenda, it is a mere draft of frustration and imprinted futility. Discuss.
The African Charter has failed the African people in many restraints. Do you agree?
Discuss the etymological foundation of the Banjul Charter.

Article 1 of the African Charter specifically provides that parties that have ratified the charter must bring their laws within the spirit and into conformity with the laws. This means that parties are to take a targeted approach to bring their domestic laws to be in pari materia with the African charter.

Nigeria ratified the African Charter in 1983, specifically on June 22. Since we ratified the African charter, by the principle of pacta sunt servanda, we are bound by the principles of the charter as far as international law is concerned. The principle of pacta sunt servanda came alive in the Greenwich Agreement, where the ICJ ceded Bakassi to Cameroon despite it being a local government in the Nigerian constitution.

Since Nigeria has ratified the charter, and Nigeria is a dualist State, it is necessary to check to provisions of the constitution for what it states on the position of international treaties.

There are claw-back clauses in various articles of the African Charter, where it provides in various sections that individuals are free to exercise their rights provided they abide by law.

The African Commission has referred to the “law” to be international law, and not domestic law.

The Nigerian State has made the African Charter part of its law. In Abacha v Fawehinmi, Mr. Fawehinmi was arrested by men from the SSS and the police sent by Abacha without an arrest warrant in the course of his fight for human rights. After his arrest, his lawyers filed a matter in court against the government of Abacha. Abacha used ouster clauses to suspend some laws relevant to human rights in Nigeria, particularly the fundamental rights. At the court, the lawyers raised the issue that Mr. Fawehinmi has the right to liberty, which had been infringed upon as provided by the constitution and African charter. According to Fatai Atanda Williams, he said that the African Charter has been transformed and is now part of the Nigerian law, and it enjoys force of law on the domestic level. However, on the issue of whether it was superior to the military decree or the constitution, the Supreme Court held that because Nigeria does not want to violate its international obligations, once there is a conflict between the African charter and other laws made by the National Assembly and the military, the African charter prevails. The distinction between the African charter and the constitution: the Supreme Court held the view that once there is a conflict between the provision of the African charter and the Nigerian constitution, the Nigerian constitution prevails.

By the decision in Fawehinmi v Abacha, the position of the law is that the African Charter is enforceable in Nigerian Courts so long as it is not inconsistent with the provisions of the Nigeria constitution. That is, where a provision of the African Charter is not in line with the provision of the constitution, such a provision shall be rendered null and void based on section 1(3) of the constitution- the supremacy clause. However, where other legislation purport to override the provision of the African Charter, such laws will be rendered null by the court, except they are laws which are in conformity with the constitution.

National Human Rights Commission

At the international level, at a particular point in time, it was decided that there was a need to have human rights institutions at the national level which could support the work of the United Nations in promoting human rights. It was an effort to bring the promotion of human rights closer to the people, and so this necessitated the importance of bringing the national human rights commission to the national level, as numerous countries have done. Countries like the US, southern American countries, Latin American countries, etc., created such commissions.

In the mid-90s, Nigeria joined in. The first act which established the national human rights commission was a decree in 1993. It was amended in 2010.

Human right institutions across the world are not of the same character or mandate. They operate in different ways.

Institutional diversity. This is what was discussed above.
Semantic diversity. Nigeria focuses on human rights protection and the likes, while some countries throw in anti-corruption or some other thing into the mix.

There is the Paris principle which brings all the issues together. It creates some form of minimum standard, so that the mandate of any commission must meet some minimum standard to be seen as a human rights commission. There are different statuses according to the principle. All National human rights institutions across the world must focus on human rights, as it is their core duty.

The major challenge with human rights commission is funding. Another major issue is the issue of autonomy. Several times, the government has removed heads of the commission they were not satisfied with.

There is also the problem of the commission working with civil society organizations. Civil society organizations are reluctant to work with the commission when it seems like a puppet of the government.

Some of the recommendations given to solve the issue of funding is that the commission should get their funds directly from the UN.

At the UN, the commission has a speaking right, especially when the commission has reached the “A” status. There is the right to both sit and speak for the commission.

Functions of the National Human Rights Institution

Human rights promotion. They are expected to create a culture of human rights in the country. There is also the duty to create awareness.
Human rights protection. They are to lead the way to ensure human rights protection, including the investigation of issues.

The two roles of promotion and protection of human rights flows through a whole lot of crosscutting responsibilities.

The commission was established on the 27th of September, 1995. It was established by decree number 22 of 1995. Currently, section 315(1) of the constitution affirms the establishment of the National Human rights commission. In 2010, there was a move to amend the National Human rights commission act, and it was so amended as National Human rights commission amended act 2010. There were a lot of amendments made, but four major amendments were made to the act.

The new amendment gives the National Human rights commission autonomy.
It allows the funds of the commission to be direct charge of the consolidated revenue fund.
It allows the commission to establish what is called the human rights fund.
Recognition and enforcement of the award of the commission like that of the high court.

Composition

Section 2 of the National Human rights act states the composition of the council of the National Human rights commission. The chairman of the commission shall be a retired judge of the Supreme Court or court of appeal, a judge of a state high court, or a lawyer with experience of the same level. It also provides for a representative each of the federal ministries of justice, foreign affairs and internal affairs. It also provides for three representatives of registered human rights organizations in Nigeria. Two legal practitioners who shall have not less than ten years post-call experience. Three representatives of the media. Three other persons to represent a variety of interests. The executive secretary of the commission.

Section 7 concerns the appointment of the executive secretary. Section 8 states the tenure of office of the executive secretary. A member of the council, other than the executive secretary, shall hold office for a term of four years and may be reappointed for an additional tenure of four years.

How to access the complaint mechanism

According to the function of the commission, the complaint mechanism can be accessed by anyone. Anybody whose right has been violated is expected to be able to lay a complaint before the National Human rights commission. They also have established procedure of how the complaint is expected to go.

When an allegation of human rights violation is made and you are asked to go to the National Human rights commission and you make a verbal report of the violation, you are asked by an officer of the commission to transfer your verbal complaint into writing. In the event that you cannot write, they may assist you in recording your complaint into their document. You would be expected to sign or thumbprint. In order for a claim to be admissible, the full information of the complaint, the facts in its support, as well as the relief sought must be included. Any complaint must contain the full names and contact address of the complainer and the body of persons against whom the complaint is made whose particulars must be included.

Function

The functions of the National Human rights commission is contained in section 5 of the National Human rights commission act. They are to do the following, amongst other things.

Protection.
Monitoring and investigation.
Assist victims of human rights violation and seek appropriate redress.
Undertake studies on all matters pertaining to human rights.
They are expected to publish, from time to time, reports on the state of human rights protection in Nigeria.
They are to liaise and cooperate with other human rights organizations, both local and international.
To participate in international activities relating to the promotion and protection of human rights.
They are expected to maintain a library and disseminate information and materials.
They are to carry out other activities related to the promotion and protection of human rights, which is a broad goal.

Section 6 concerns the powers of the commission. Section 12 concerns the fund of the commission. They also have the power to accept gifts, as long as it is not for purposes of coercion, which is stated in section 13. Section 16 concerns the annual report. Over time, the commission has expanded as they are currently in the six geopolitical zones.

Public Complaints Commission (Ombudsman)

Ombudsman is an indigenous danish, Norwegian and Swedish terminology which essentially means representative. An ombudsman is an official who is usually appointed by the government or parliament and is expected to represent the interest of the public by investigating and addressing complaints reported by individual citizens. It is often seen as one of the effective alternative dispute resolution institutions available. It is established in countries to address/redress administrative injustices.

The idea of an ombudsman started as an expression of independence from the king in Sweden. There was a need for someone else who could be complained to. In Sweden, the Ombudsman was approved by the Swedish parliament in 1809 to receive complaints from the public about alleged bureaucratic mistakes, abuse or incompetence. A hundred and ten years after the Swedish established their own office of the ombudsman, the Finnish parliament established another model that was responsible to the parliament as opposed to the Swedish ombudsman which was responsible to the king and the Swedish ombudsman was abide-able to the citizens.

In 1953, Denmark established its ombudsman office while Norway joined in 1958. Later in 1958, New Zealand also joined. Other nations in Europe, Africa, Latin America, etc., also adopted the idea with different variations to create a kind of ombudsman which could fit for their own context.

They are called different names in different places. It is called the parliamentary commissioner for administration in Britain. All citizens who wish to come before the British ombudsman is required to submit a letter through a member of the parliament. This same model was adopted by India, Tanzania and Norway.

In Nigeria, the North Central state government promulgated edict no 4 of 1974 to give birth to the first ombudsman office in Nigeria. That model was later adopted in 1976 by the federal government. It was popularly known as the Udoji commission. The commission was set up by the Muritala Muhammed regime of 1975. It was done by decree no 31 of 16th October 1975 and amended later by decree 21 of 31st May 1979.

The enabling law for the commission was later entrenched in the 1979 constitution, in section 273(5) and it was retained in the 1999 constitution in section 315(5)(b) as an enabling law which should not be invalidated. The public complaint commission act was incorporated into the laws of the federation in 2004. There was an attempt in 2010 to amend the law, but it has not become feasible over time.

One of the reasons for the establishment was because the military government lacked the ability to control public service. There was also the oil boom, and the need to expand the government’s activities and more ministries were being created. So a mechanism for complaint was necessary. Thirdly, because the military rule was an autocratic rule, there were lots of violations of rights taking place within the government establishment. The fourth reason was because the public service was inefficient. The government also wanted an organ that would curtail abuses of due process and privileges by bureaucrats.

The commission has the following mandates.

To investigate and conduct research in ministries, private companies and officials of these bodies.
To investigate administrative procedure of any court of law in Nigeria.
To report crimes in the course of their investigations.
To report any erring officer in course of disciplinary action.
To interpret policies of government and advise governments and companies.
To make public reports after investigation.
To have access to all information.
Making recommendations after investigations.

The commission, at the national level, is headed by a Chief commissioner, and there are state commissioners in each state.

Appointments

The National Assembly, by virtue of section 2(1), has the mandate to appoint the chief commissioner and other commissioners. Section 2(2) of the public complaints commission act talks about who should be appointed as the commissioner. They are required to be people of proven integrity, and they are to hold office for three years at first instance, and they can be appointed for another three years. The appointment for other staff and their tenure of office is covered in section 3, and it shall be done by the Chief commissioner. Section 5 covers the powers and duties of the commissioner. Section 5(1) states that they are responsible to the National Assembly, and the Chief commissioner is expected to coordinate the actions of other commissioners. Section 5(2) talks about the power to investigate complaints lodged by other persons, or take any administrative action against any department or ministry of the federation or any state government. They may also take complaints about any department of the local government authority. They may also take complaints about any statutory corporation or public institution. They may take complaints about any company incorporated under CAMA, whether owned by government or by private individuals. They can entertain complaints about officers or servants of the government.

Section 5(3) gives the power to the commission to have access to all the information necessary for them to execute their duties efficiently. This means that they may visit and inspect premises. Section 5(3)(d) talks about the fact that the actions of the commission should not result in injustice, it should not contradict any law or regulation, they should not do anything which would be mistaken in law or arbitrary in the ascertainment of fact. They are not to do anything which is unreasonable, unfair, oppressive or inconsistent. Their decisions should not be led by improper motivation.

Section 5(5) also talks about confidentiality of the source and content of their information. Section 5(6) talks about the commission not being subjected to the direction or control of any other authority, so that they are not biased.

By virtue of section 5(7), it is the duty of anybody required by the commission to furnish information or comply with the requirement within thirty days from the receipt of the request.

The commission is also restricted from doing the following.

Investigating any matter which is not within their mandate.
Any matter which is pending before the National Assembly, council of state or the president.
Any matter which is pending before a court.
Any matter in relation to anything done by the armed forces or investigate any matter in which the complainant has not exhausted legal or administrative procedures.
Investigate any act done before 29 July, 1975, before the commission was created.
Investigate any matter which the complainant has no personal interest.

Procedure for Complaint

Complaints are lodged in writing and signed by the complainant. They can be submitted in person or sent to the commission through government boxes.

The ombudsman can make recommendations to the appropriate person responsible to take action.

They may also refer cases where they feel that existing laws and procedures are inadequate. They can also refer cases where a crime has been committed. Where the commissioner is of the opinion that the conduct of any person should lead to disciplinary action, a report shall be made to the appropriate authority in that regard. No complaint is to be made public. Making a complaint public carries a fine of #500 or six months imprisonment or both. Where you fail to furnish information, it carries a fine of #500 or six months imprisonment or both. Where you willfully obstruct or interfere or give false information, it carries a fine of #500 or six months imprisonment or both.

Section 10 concerns the immunity of the commissioners from legal action.

African Commission

The commission became effective in 1987, and the commission acts as a quasi-judicial body. It provides a mechanism to support victims of abuse within the African region, it reviews complaints lodged by states, individuals, NGOs regarding human rights violation. Article 45 of the African Charter lays down the rule for the complaint mechanism. The commission can call for oral evidence. It also reconciles parties.

The commission has helped in improving jurisprudence on a lot of issues, particularly on issues of right to life, environmental rights, rights of the indigenous people, and several other rights. Article 31 of the African Charter talks about the composition of the commission. It provides that there shall be eleven commissioners, and they are to serve in their personal capacity. They are not serving as representatives of their countries. They are to be people who are expected to be of high moral standing, high integrity and to be known for their impartiality. Particularly, they should be known for their competence in human and people’s rights. Amongst the fifty countries, the commissioners shall come from eleven different states.

They are to serve for a six year period, and may be re-elected. There are seven members required to form a quorum.

The commission has duties. It has the duty to protect, the duty to promote and the duty to interpret the charter. The commission can organize programs and disseminate information about particular issues. They formulate rules and lay down principles aimed at solving legal problems relating to human and peoples’ rights upon which African governments are expected to act.

One of the main roles of the commission is to monitor the implementation of the African Charter. They do that through the following.

The use of subsidiary mechanism
Receiving communications form individuals and states.
Through state reports.
Through on site visits.
Engagement of non-governmental organizations.
Through interaction with AU organs.

There is a mechanism for torture, another with freedom of expression and access to information, another concerning human rights defenders. The commission takes two types of communications. The first type is called individual communications, and it is provided for in article 55 of the African charter. It allows individuals or NGOs to bring communications to the commission. The commission will look at the communications brought and admit the acceptable ones. The second is the interstate communication provided for in articles 47-49 and article 52 of the African charter. These are communications by state parties.

There is need to exhaust local remedies. However, there are some exceptions to this such as if the process is unduly prolonged. The commission has the right to compel the state party involved to provide all relevant information.

There are issues with respects to their decisions. Because the commission is not a court, its decisions are often not upheld by the states. While filing a communication, it is necessary to indicate the author. The communication must be compatible with the African Charter. It must also not be written in disparaging or insulting language. The submission also must not be based on mass media speculations.

Remedies

Recommendations to states and writing to the states. Also pressuring the states.
Helping to resolve issues between individuals and states.

Challenges

Their decisions are not legally binding and so the states cannot be forced to comply.
Funding
Lack of autonomy and independence.
Poor staffing.
There is over dependence on the African Union.
It sometimes takes too long to dispense communications. They meet twice in a year, and between ten to fifteen days.