excerpted from: Yemi Akinseye-George, New Trends in
African Human Rights Law: Prospects of an African Court of Human Rights,
10 University of Miami International and Comparative Law Review 159-175,
168-170 (2001-2002) (55 footnotes)
Notwithstanding its defects (and they are many), the African Charter
and the African Commission have had some important beneficial effects on
the domestic law and practice relating to human and peoples' rights in
several African countries.
First, the Charter has positively impacted (albeit indirectly) the
development of constitutional law with particular reference to human
rights. The last decade has witnessed the adoption of new constitutions
that incorporate bill of rights in a manner similar to those contained
in the African Charter. The South African Bill of Rights, for instance,
guarantees socio-economic rights such as the right to education.
Similarly, Malawi and Namibia have adopted new constitutional pacts
which show a commitment to the recognition and protection of human
rights as enunciated in the African Charter and other international
human rights instruments. These new bills of human rights differ from
those of the immediate post colonial era in that, not only are they
justiciable, but they also reflect changed political realities and on-
going democratic struggles. As Maluwa observed, "The common theme
running through all these changes has been the attempt to institute
political pluralism and democratic rule in place of single-party
dictatorships and autocratic oligarchies that had become the political
order of the day in all but a handful of African states, and to build a
political culture founded on a conception of human rights now taken for
granted in the more established democracies."
Also, some African countries have incorporated the Charter into
domestic law, thus facilitating its enforcement by domestic courts. In
Nigeria for instance, the Charter was incorporated through the African
Charter (Ratification and Enforcement) Act cap 10, Laws of the
Federation of Nigeria, 1990. Consequently, Nigerian lawyers frequently
cite the provisions of the Charter to support human rights actions in
domestic courts. In the case of Abacha v. Fawehinmi, the Nigerian
Supreme Court upheld a decision of the Court of Appeals on the
superiority of the African Charter to domestic legislation. The Court,
however, rejected an argument that the Charter was superior to the
national constitution of the country.
The African Charter has also had some positive political impact in
African countries. Nigeria has a good record of compliance with
decisions of the African Commission. The few cases of non-compliance are
exceptional. In fact, African countries often respond with less
enthusiasm toward United Nations human rights mechanisms. They regard
the African human rights system as "our own" while often
viewing the United Nations system as foreign. It is believed that the
Nigerian military government might have executed some Zango Kataf
activists who were sentenced to death by a tribunal, but for the
intervention of the African Commission. The Chairman of the Commission
had written to the Nigerian Government urging it to postpone the planned
execution of the activists pending the determination of their petition
by the Commission. The government seems to have complied.
Again in Katangese Peoples' Congress v. Zaire, although the
Commission did not accept the claim of the people of Katanga to 'self-
determination in a manner that would have recognized their claim to
secede from Zaire, the government was held to be under an obligation to
recognize the peoples' right to their indigenous culture and language.
Perhaps the most profound impact of the African human rights system
on domestic law has been in the area of civil society empowerment.
Before the establishment of the African Commission, African human rights
NGOs used to work only with NGOs based in Europe and America. There was
little interaction among African NGOs. However, the Charter, in its
establishment of the Commission, has created a platform for NGOs to meet
twice every year to exchange ideas. African NGOs with observer status at
the African Commission are allowed to make submissions at the sessions
of the Commission. During the military era, Nigerian NGOs learned a lot
from South African NGOs through this platform. The African NGOs now have
what is called the Civil Society Forum at the Summit of the Heads of
State of OAU (now African Union). It is the work of the NGOs (African
and non-African) that gave impetus to the emergence of the additional
protocols of the African Charter including that of the African Court.
The NGOs forum constituted a powerful lobbying group in convincing
African leaders about the need, not only for an African Court but also
for an African Union. The following section considers these new features
of the African human rights system.