Institutional mechanisms of the African human rights system

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CHAPTER TWO HISTORICAL AND PHILOSOPHICAL BACKGROUND OF HUMAN RIGHTS IN AFRICA

Introduction

International human rights law is a branch of public international law.1 Alston correctly acknowledged that, while its antecedents lie in domestic legal, social and political developments, the process through which an authentic body of human rights law has emerged at the global level has been very much a top-down rather than a bottom-up one.2 This is because it was the inclusion in the United Nations Charter of a commitment to human rights and the subsequent elaboration of more precisely defined obligations in international law that marked the transition of human rights from a field of philosophical inquiry and moral invocation to its present universal status.3 Currently, this branch of law has a definite personality, albeit one which is expected to change dramatically owing to its disputed philosophical foundations.4 At the moment, international human rights law has attracted some of the most sustained philosophical challenges, especially in Africa. This is certainly true in relation to the debate over cultural relativism against that of universalism. It is against this background that this chapter examines the historical and philosophical background of international human rights law in Africa. The objective here is to trace the historical origin and development of human rights law from pre-colonial to contemporary Africa. This is based on the premise that to understand the development of Africa’s regional human rights system, the study of its history, philosophy and sociology is necessary.5 The bottom-line of this study are the arguments and counter-arguments on the place of human rights in the history of Africa. As discussed later in this chapter, some scholars have contended that human rights had no place on the continent prior to foreign intervention while others have countered this view.6 An in-depth study of the historical origin of human rights law in Africa is therefore essential because of the relevance of the concept to the contemporary society. It should be recalled that this study is concerned with the enforcement of international human rights law at the regional level and not the national or domestic one. Any attempt to undersore human rights in pre-colonial Africa, as is done here, should, however, not be construed as a deviation from the scope and subject matter of the present study, but rather as a way of trying to establish their origin and basis in Africa. Such an inquiry is imperative because, to appreciate that the concept of human rights was also recognised by Africans even before the advent of European colonialists will debunk the argument that denies the pre-colonial practice of human rights. Moreover, before human rights became an international concern, they were promoted, protected as well as violated at the national or domestic level. Consequently, we cannot blindly focus on human rights as an international concept and ignore their domestic background; otherwise the study would be partial and incomplete.Further, before Africa became ‘a region’, which is undoubtedly the focus of the present study, it was a place inhabited by diverse communities, living more or less independently from each other. Ignoring this fact in a study of this magnitude would be to betray the fact that before Africa became ‘regional’, the various communities that inhabited it had their own historical and philosophical backgrounds and perceptions of issues pertaining to life, including human rights. By extension, these backgrounds and perceptions played a critical role, as they still do, in influencing the emergence and evolution of the regional human rights system. While the foregoing discussion attempted to vindicate the importance of underscoring the existence of human rights in pre-colonial Africa in this study, we will at the same time be cautious not to delve deep into the domestic concerns of human rights, save for the reason of establishing the background to international human rights law, generally, and the origin and evolution of the African human rights system, particularly. In doing so, this chapter will be forming a necessary link with chapter 3 that reviews the the normative and institutional mechanisms of the African human rights system, and chapter 4, which deals with the challeges and possible strategies on reforming the system. This chapter shall therefore endeavour to answer a number of questions, including: what is human rights law? Is this branch of law Western or does it have a place within the African context? What arguments have been advanced for or against the existence of human rights in pre-colonial Africa? Are the arguments plausible? What are the philosophical and conceptual origins of the human rights concept? How did human rights evolve in Africa to attain their present regional status? Did the OAU/AU play any role in the evolution of regional protection of human rights in Africa? Should the concept of human rights in Africa be construed as contextual or universal? The end result would be a better understanding and appreciation of the historical, philosophical and conceptual foundations of human rights in Africa, generally, and the African human rights system, particularly.

ACKNOWLEDGEMENTS
ABSTRACT AND KEY TERMS
LIST OF ACRONYMS
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background
1.2 Research problem and subject matter of the study
1.3 Importance and aims of the study
1.3.1 Importance of the study
1.3.2 Aims of the study
1.4 Scope and limitation of the study
1.5 Justification of the study
1.5.1 Justification for ‘investigating challenges’
1.5.2 Justification for studying enforcement of international human rights law in Africa
1.5.3 Justification of the aim of addressing the challenges: ‘Towards an effective regional system’
1.6 Literature review
1.6.1 The features and major trends in the reviewed literature
1.6.2 Neglected questions or questions insufficiently addressed in the reviewed literature
1.7 Research questions
1.8 Hypotheses, expected findings and conclusions
1.9 Research methods
1.9.1 The legal, juridical or normative approach
1.9.2 The comparative approach
1.9.3 The secondary data analysis approach
1.9.4 Historical approach
1.9.5 Philosophical approach
1.10 Overview of chapters
CHAPTER TWO: HISTORICAL AND PHILOSOPHICAL BACKGROUND OF HUMAN RIGHTS IN AFRICA
2.1 Introduction
2.2 Definition, classification and scope of human rights
2.2.1 Definition of human rights
2.2.2 Classification of human rights
2.2.3 Scope of human rights
2.3 Philosophical foundations of human rights
2.3.1 Natural law (rights) theory
2.3.2 Positivist theory
2.3.3 Marxist theory
2.4 Internationalisation of human rights
2.5 Human rights in Africa
2.5.1 Human rights in pre-colonial Africa
2.5.1.1 The nature of Africa’s pre-colonial societies
2.5.1.2 Arguments on the existence of human rights in pre-colonial Africa
2.5.1.3 The African concept of human rights
2.5.2 The status of human rights in Africa during the slave trade period
2.5.3 Human rights in colonial Africa
2.5.3.1 The status of human rights in colonial Africa under the Indirect Rule system
2.5.3.2 The status of human rights in colonial Africa under the Direct Rule/ Paternalism system
2.5.3.3 The status of human rights in colonial Africa under the Assimilation system
2.5.4 Human rights in post-colonial Africa
2.5.4.1 The emergence of independent African states
2.5.4.2 The emergence and role of the OAU in human rights protection in Africa
2.5.4.3 The emergence of Africa’s regional human rights system
2.5.4.4 The evolution of the African human rights system to its present status
2.5.4.4.1 The transformation of the OAU to African Union (AU)
2.5.4.4.2 The New Partnership for Africa’s Development (NEPAD) and the African Peer Review Mechanism (APRM)
2.5.4.4.3 The establishment of the African Court on Human and Peoples’ Rights
2.6 Conclusion
CHAPTER THREE: A REVIEW OF THE NORMATIVE AND INSTITUTIONAL MECHANISMS OF THE AFRICAN HUMAN RIGHTS SYSTEM
3.1 Introduction
3.2 Normative mechanisms of the African human rights system
3.2.1 The African Charter on Human and Peoples’ Rights
3.2.1.1 Structure and salient features of the African Charter
3.2.1.2 Individual human rights under the Charter
3.2.1.2.1 Civil and political rights
3.2.1.2.1.1 Right to non-discrimination
3.2.1.2.1.2 Right to life and integrity of the person
3.2.1.2.1.3 Right against all forms of slavery, slave trade, torture and cruel, inhuman or degrading treatment
3.2.1.2.1.4 Right to liberty and security of the person
3.2.1.2.1.5 Right to a fair trial
3.2.1.2.1.6 Right to freedom of conscience and religion
3.2.1.2.1.7 Right to freedom of expression
3.2.1.2.1.8 Right to freedom of Association
3.2.1.2.1.9 Right to freedom of assembly
3.2.1.2.1.10 Right to freedom of movement
3.2.1.2.1.11 Right to participate in the government of one’s country
3.2.1.2.1.12 Right to property
3.2.1.2.2 Economic, social and cultural rights
3.2.1.2.2.1 Right to equitable and satisfactory conditions of work
3.2.1.2.2.2 Right to health
3.2.1.2.2.3 Right to education
3.2.1.3 Collective and peoples’ rights under the Charter
3.2.1.3.1 Right to the protection of the family and other related rights
3.2.1.3.2 Right to self-determination
3.2.1.3.3 Right over wealth and natural resources
3.2.1.3.4 Right to economic, social and cultural development
3.2.1.3.5 Right to peace
3.2.1.3.6 Right to a general satisfactory environment
3.3 Institutional mechanisms of the African human rights system
3.3.1 The African Commission on Human and Peoples’ Rights
3.3.1.1 The commission’s promotional mandate
3.3.1.1.1 General promotional activities
3.3.1.1.2 The State reporting mechanism
3.3.1.2 The commission’s protective mandate
3.3.1.2.1 Inter-state communications procedure
3.3.1.2.2 Individuals (‘other’) communications procedure
3.3.1.2.2.1 Submission of individual communications
3.3.1.2.2.2 Admissibility of individual communications
3.3.1.2.2.3 Procedure after a communication has been declared admissible
3.3.1.2.2.4 The commission’s recommendations on communications
3.3.1.2.2.5 Provisional (interim) measures and remedies
3.3.2 The African Court on Human and Peoples’ Rights
3.3.2.1 Establishment and composition of the Court
3.3.2.2 Access and Jurisdiction of the court
3.3.2.2.1 Access to the court
3.3.2.2.2 Jurisdiction of the court
3.3.2.2.2.1 Contentious (adjudicatory) Jurisdiction
3.3.2.2.2.2 Advisory Jurisdiction
3.3.2.2.2.3 Conciliatory Jurisdiction
3.3.2.3 Procedures of the court
3.3.2.3.1 Admissibility and consideration of cases
3.3.2.3.2 Judgements of the court
3.3.2.3.3 Remedies
3.3.3 Relationship between the court, the commission, the AU and other relevant human rights bodies
3.3.3.1 Relationship between the court and commission
3.3.3.2 Relationship between the court and AU and its organs
3.3.3.3 Relationship between the court and other human rights bodies
3.4 Conclusion
CHAPTER FOUR: THE AFRICAN HUMAN RIGHTS SYSTEM: CHALLENGES AND STRATEGIES FOR REFORM
4.1 Introduction
4.2 The normative mechanisms of the African human rights system
4.2.1 Reforming the civil and political rights provisions of the Charter
4.2.2 Reforming the economic, social and cultural rights and other substantive provisions of the Charter
4.3 The institutional mechanisms of the African human rights system
4.3.1 The African Commission on Human and Peoples’ Rights
4.3.2 The African Court on Human and Peoples’ Rights
4.3.3 Institutional overlaps and duplication and their challenges to the effective enforcement of human rights in the region
4.3.3.1 Rationalising the African human rights court and the commission
4.3.3.2 Rationalising the African human rights court and the African Court of Justice
4.4 Conclusion
CHAPTER FIVE: GENERAL CONCLUSION
5.1 Summary of findings, recommendations and conclusions
5.2 Questions and recommendations for further research and investigation
BIBLIOGRAPHY