AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
The African States members of the Organisation of African Unity, parties to the present Convention entitled “African Charter on Human and Peoples’ Rights
Recalling Decision 115 (XVI) of the Assembly of Heads of State and Government at its Sixteenth Ordinary Session held in Monrovia, Liberia, from 17 to 20 July 1979 on the preparation of “a preliminary draft on an African Charter on Human and Peoples’ Rights, providing inter alia for the establishment of bodies to promote and protect human and peoples’ rights”;
Considering the Charter of the Organisation of African Unity, which stipulates that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples”;
Reaffirming the pledge they solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights;
Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights;
Recognizing on the one hand, that fundamental human rights stem from the attitudes of human beings, which justifies their international protection and on the other hand that the reality and respect of peoples’ rights should necessarily guarantee human rights;
Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone;
Convinced that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights;
Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, language, religion or political opinions;
Reaffirming their adherence to the principles of human and peoples’ rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organisation of African Unity, the Movement of Non-Aligned Countries and the United Nations;
Firmly convinced of their duty to promote and protect human and peoples’ rights and freedoms and taking into account the importance traditionally attached to these rights and freedoms in Africa;
HAVE AGREED AS FOLLOWS:
PART I: RIGHTS AND DUTIES
CHAPTER I: HUMAN AND PEOPLES’ RIGHTS
The Member States of the Organisation of African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.
Every individual shall be equal before the law
Every individual shall be entitled to equal protection of the law
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Every individual shall have the right to have his cause heard. This comprises:
The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
The right to be presumed innocent until proved guilty by a competent court or tribunal;
The right to defence, including the right to be defended by counsel of his choice;
The right to be tried within a reasonable time by an impartial court or tribunal.
No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
Every individual shall have the right to receive information.
Every individual shall have the right to express and disseminate his opinions within the law.
Every individual shall have the right to free association provided that he abides by the law.
Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association.
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
Every individual shall have the right to leave any country including his own, and to return to his country.
This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions.
A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.
The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.
Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
Every citizen shall have the right of equal access to the public service of the country.
Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.
Every individual shall have the right to enjoy the best attainable state of physical and mental health.
State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
Every individual shall have the right to education
Every individual may freely take part in the cultural life of his community.
The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.
The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.
The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.
The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.
All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.
All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it
In case of spoilation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity.
State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organisation of African Unity shall govern relations between States.
For the purpose of strengthening peace, solidarity and friendly relations, State Parties to the present Charter shall ensure that:
any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter;
their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter.
All peoples shall have the right to a general satisfactory environment favourable to their development.
State Parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.
State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.
CHAPTER II: DUTIES
Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community.
The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.
Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
The individual shall also have the duty:
To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.
To serve his national community by placing his physical and intellectual abilities at its service;
Not to compromise the security of the State whose national or resident he is;
To preserve and strengthen social and national solidarity, particularly when the latter is strengthened;
To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to his defence in accordance with the law;
To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;
To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.
PART II: MEASURES OF SAFEGUARD
CHAPTER I: ESTABLISHMENT AND ORGANISATION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
An African Commission on Human and Peoples’ Rights, hereinafter called “the Commission”, shall be established within the Organisation of African Unity to promote human and peoples’ rights and ensure their protection in Africa.
The Commission shall consist of eleven members chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to personshaving legal experience.
The members of the Commission shall serve in their personal capacity.
The Commission shall not include more than one national of the same State.
The members of the Commission shall be elected by secret ballot by the Assembly of Heads of State and Government, from a list of persons nominated by the State Parties to the present Charter.
Each State Party to the present Charter may not nominate more than two candidates. The candidates must have the nationality of one of the State Parties to the present Charter. When two candidates are nominated by a State, one of them may not be a national of that State.
The Secretary General of he Organisation of African Unity shall invite State Parties to the present Charter at least four months before the elections to nominate candidates;
The Secretary General of the Organisation of African Unity shall make an alphabetical list of the persons thus nominated and communicate it to the Heads of State and Government at least one month before the elections;
The members of the Commission shall be elected for a six year period and shall be eligible for re-election. However, the term of office of four of the members elected at the first election shall terminate after two years and the term of office of three others, at the end of four years.
Immediately after the first election, the Chairman of the Assembly of Heads of State and Government of the Organisation of African Unity shall draw lots to decide the names of those members referred to in Article 36.
After their election, the members of the Commission shall make a solemn declaration to discharge their duties impartially and faithfully.
In case of death or resignation of a member of the Commission, the Chairman of the Commission shall immediately inform the Secretary General of the Organisation of African Unity, who shall declare the seat vacant from the date of death or from the date on which the resignation takes effect.
If, in the unanimous opinion of other members of the Commission, a member has stopped discharging his dutiesfor any reason other than a temporary absence, the Chairman of the Commission shall inform the Secretary General of the Organisation of African Unity, who shall then declare the seat vacant.
In each of the cases anticipated above, the Assembly of Heads of State and Government shall replace the member whose seat became vacant for the remaining period of his term, unless the period is less than six months.
Every member of the Commission shall be in office until the date his successor assumes office.
The Secretary General of the Organisation of African Unity shall appoint the Secretary of the Commission. He shall provide the staff and services necessary for the effective discharge of the duties of the Commission. The Organisation of African Unity shall bear cost of the staff and services.
The Commission shall elect its Chairman and Vice Chairman for a two-year period. They shall be eligible for re-election.
The Commission shall lay down its rules of procedure.
Seven members shall form the quorum.
In case of an equality of votes, the Chairman shall have a casting vote.
The Secretary General may attend the meetings of the Commission. He shall neither participate in deliberations nor shall he be entitled to vote. The Chairman of the Commission may, however, invite him to speak.
In discharging their duties, members of the Commission shall enjoy diplomatic privileges and immunities provided for in the General Convention on the Privileges and Immunities of the Organisation of African Unity.
Provision shall be made for the emoluments and allowances of the members of the Commission in the Regular Budget of the Organisation of African Unity.
CHAPTER II: MANDATE OF THE COMMISSION
The functions of the Commission shall be:
To promote human and peoples’ rights and in particular:
to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights and, should the case arise, give its views or make recommendations to Governments.
to formulae and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislation.
cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.
Ensure the protection of human and peoples’ rights under conditions laid down by the present Charter.
Interpret all the provisions of the present Charter at the request of a State Party, an institution of the OAU or an African Organisation recognised by the OAU.
Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and Government.
CHAPTER III: PROCEDURE OF THE COMMISSION
The Commission may resort to any appropriate method of investigation; it may hear from the Secretary General of the Organisation of African Unity or any other person capable of enlightening it.
COMMUNICATION FROM STATES
If a State Party to the present Charter has good reasons to believe that another State Party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter. This Communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission. Within three months of the receipt of the Communication, the State to which the Communication is addressed shall give the enquiring State, written explanation or statement elucidating the matter. This should include as much as possible, relevant information relating to the laws and rules of procedure applied and applicable and the redress already given or course of action available.
If within three months from the date on which the original communication is received by the State to which it is addressed, the issue is not settled to the satisfaction of the two States involved through bilateral negotiation or by any other peaceful procedure, either State shall have the right to submit the matter to the Commission through the Chairman and shall notify the other States involved.
Notwithstanding the provisions of Article 47, if a State Party to the present Charter considers that another State Party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organisation of African unity and the State concerned.
The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.
The Commission may ask the State concerned to provide it with all relevant information.
When the Commission is considering the matter, States concerned may be represented before it and submit written or oral representation.
After having obtained from the States concerned and from other sources all the information it deems necessary and after having tried all appropriate means to reach an amicable solution based on the respect of human and peoples’ rights, the Commission shall prepare, within a reasonable period of time from the notification referred to in Article 48, a report to the States concerned and communicated to the Assembly of Heads of State and Government.
While transmitting its report, the Commission may make to the Assembly of Heads of State and Government such recommendations as it deems useful.
The Commission shall submit to each Ordinary Session of the Assembly of Heads of State and Government a report on its activities.
Before each Session, the Secretary of the Commission shall make a list of the Communications other than those of State Parties to the present Charter and transmit them to Members of the Commission, who shall indicate which Communications should be considered by the Commission.
A Communication shall be considered by the Commission if a simple majority of its members so decide.
Communications relating to Human and Peoples’ rights referred to in Article 55 received by the Commission, shall be considered if they:
Indicate their authors even if the latter requests anonymity,
Are compatible with the Charter of the Organisation of Afri- can Unity or with the present Charter,
Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organisation of African Unity,
Are not based exclusively on news disseminated through the mass media,
Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,
Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized with the matter, and
Do not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Or- ganisation of African Unity or the provisions of the present Charter.
Prior to any substantive consideration, all communications shall be brought to the knowledge of the State concerned by the Chairman of the Commission.
When it appears after deliberations of the Commission that one or more Communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples’ rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases.
The Assembly of Heads of State and Government may then request the Commission to undertake an in-depth study of these cases and make a factual report, accompanied by its finding and recommendations.
A case of emergency duly noticed by the Commission shall be submitted by the latter to the Chairman of the Assembly of Heads of State and Government who may request an in-depth study.
All measures taken within the provisions of the present Chapter shall remain confidential until the Assembly of Heads of State and Government shall otherwise decide.
However the report shall be published by the Chairman of the Commission upon the decision of he Assembly of Heads of State and Government.
The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.
CHAPTER IV: APPLICABLE PRINCIPLES
The Commission shall draw inspiration from international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the Parties to the present Charter are members.
The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by Member States of the Organisation of African Unity, African practices consistent with international norms on Human and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African States as well as legal precedents and doctrine.
Each State Party shall undertake to submit every two years, from the date the present Charter comes into force, a report on the legislative or other measures taken, with a view to giving effect to the rights and freedoms recognised and guaranteed by the present Charter.
The present Charter shall be open to signature, ratification or adherence of the Member States of the Organisation of African Unity.
The instruments of ratification or adherence to the present Charter shall be deposited with the Secretary General of the Organisation of African Unity.
The present Charter shall come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority of the Member States of the Organisation of African Unity.
PART III: GENERAL PROVISIONS
After the coming into force of the present Charter, members of the Commission shall be elected in accordance with the relevant Articles of the present Charter.
The Secretary General of the Organisation of African Unity shall convene the first meeting of the Commission at the Headquarters of the Organisation within three months of the constitution of the Commission. Thereafter, the Commission shall be convened by its Chairman whenever necessary but at least once a year.
For each of the States that will ratify or adhere to the present Charter after its coming into force, the Charter shall take effect three months after the date of the deposit by that State of the instrument of ratification or adherence.
Special protocols or agreements may, if necessary, supplement the provisions of the present Charter.
The Secretary General of the Organisation of African Unity shall inform members of the Organisation of the deposit of each instrument of ratification or adherence.
The present Charter may be amended if a State Party makes a written request to that effect to the Secretary General of the Organisation of African Unity. The Assembly of Heads of State and Government may only consider the draft amendment after all the State Parties have been duly informed of it and the Commission has given its opinion on it at the request of the sponsoring State. The amendment shall be approved by a simple majority of the State Parties. It shall come into force for each State which has accepted it in accordance with its constitutional procedure three months after the Secretary General has received notice of the acceptance.
Adopted by the eighteenth Assembly of Heads of State and Government,
June 1981 – Nairobi, Kenya
RESERVATIONS AND DECLARATIONS TO THE AFRICAN CHARTER
Having considered the African Charter on Human and Peoples’ Rights, the Arab Republic of Egypt signed the said Charter on 16 November 1981 and attached hereto is the following instrument of ratification:
Having accepted all the provisions of the African Charter on Human and Peoples’ Rights with the approval of the People’s Assembly and with the reservation that article 8 and paragraph 3 of article 8 and paragraph 3 of article 18 be implemented in accordance with the Islamic Law and that, as far as the Arab Republic of Egypt is concerned, the provision of the first paragraph of article 9 should be [confined] to such information as could be obtained within the limits of the Egyptian laws and regulations;
We hereby declare acceptance and ratification of the said Charter.
South Africa SOUTH AFRICA
While acceding to the African Charter on Human and Peoples’ Rights it is the view of the Republic of South Africa that there should be consultation between States parties to the Charter, inter alia, to:
consider possible measures to strengthen the enforcement mechanisms of the Charter;
clarify the criteria for the restrictions of rights and freedoms recognised and guaranteed in the Charter; and
bring the Charter into line with the United Nations’ resolutions regarding the characterisation of Zionism.
WHEREAS the African Charter on Human and Peoples’ Rights was adopted by the Assembly of Heads of State and Government of the Member States of the Organisation of African Unity held at Nairobi in June 1981:
AND WHEREAS the Government of the Republic of Zambia signed the Charter on 17th January 1983;
AND WHEREAS the Charter provides that the Charter is subject to ratification by the States Parties which are signatories to the Charter;
AND WHEREAS the Republic of Zambia is a State Party to the Charter on whose behalf the Charter has been signed;
NOW THEREFORE the Government of the Republic of Zambia having considered the aforesaid Charter hereby
CONFIRMS AND RATIFIES the same on behalf of the Republic of Zambia and undertakes faithfully to observe the provisions and carry out all the stipulations therein contained subject to the following amendments or reservations:
Article 13 paragraph 3 should read:- “Every individual shall have the right of access to any place, services or public property intended for use by the general public.”
(Explanation: The purpose of this reservation is to exclude any claim for the right to use by all citizens of all public property other than as fairly established.)
Article 37 should read:- “Immediately after the first election the Chairman of the Assembly of Heads of State of the Organisation of African Unity shall announce the names of those members referred to in Article 36.”
(Explanation: This is to avoid calling on the Chairman, who is after all a Head of State, carrying out the rather menial exercise of drawing lots. It being understood that the Secretary-General of the Organisation of African Unity would draw such lots.)
There should be an extra article which should read:- “After the establishment of the Commission all members of the OAU not ratifying or adhering to the Charter shall submit reports to the Commission, at appropriate intervals, on the position of their laws and practices in regard to the matters dealt with in the Charter, showing the extent to which effort has been given, or is proposed to be given, to any of the provisions of the Charter by legislation or administrative action and stating the difficulties which prevent or delay ratification or adherence to the Charter.”
(Explanation:- In the interest of early universal ratification of the Charter by the Organisation of African Unity Countries and also since all Heads of State of the OAU will together tackle the problems of administering or enforcing the Charter including, where necessary, criticising fellow Heads of State who are proved to have violated the Charter, all members of the OAU should carry some responsibility, under the Charter, for the state of human and peoples’ rights in their respective countries.)
Sunday, June 28, 1981
Entry into force:
Tuesday, October 21, 1986
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