The Values of African Civilisation
Decoding the “historical traditions” and “positive African cultural
values” in the African Charter on Human and Peoples’ Rights
By
Ms Abiola Idowu-Ojo
Senior Legal Officer
Dr Chairman Okoloise
Senior Legal Expert
Secretariat
African Commission on Human
and Peoples’ Rights
of the
24 April 2023
1
Table of Contents
I.
BACKGROUND .............................................................................................................. 1
II.
RATIONALE FOR THE ANALYSIS ON AFRICAN VALUES................................. 4
III.
AFRICAN VALUES AND HISTORIC TRADITIONS ................................................ 7
IV.
THE 2006 PAPER ON THE COMMISSION’S INTERPRETATION OF ARTICLE 59
.......................................................................................................................................... 14
V.
INTERPRETING THE EXECUTIVE COUNCIL DECISIONS ................................. 16
VI.
REFLECTIONS ON THE GRANTING OF OBSERVER STATUS TO CAL ......... 18
VII.
THE COMMISSION’S GUIDANCE TO STATE PARTIES ...................................... 32
VIII.
WEIGHING CAL’S OBSERVER STATUS AGAINST AFRICAN VALUES AND
HISTORIC TRADITION ............................................................................................... 32
IX.
IMPLICATIONS OF INTERFERENCES BY AU POLICY ORGANS ON THE
COMMISSION’S INDEPENDENCE .......................................................................... 33
X.
CONCLUSIONS AND RECOMMENDATIONS .......................................... 37
ii
I.
BACKGROUND
1. One of the unique attributes of the African Charter on Human and Peoples’
Rights 1981 (African Charter) is the understanding that it is anchored on
African historical traditions and values. At the time of drawing up the Charter,
the drafters did not choose to replicate the human rights standards as set out
in the existing human rights instruments at the time such as the Universal
Declaration of Human Rights 1948, the European Convention on Human
Rights 1950, the International Covenant on Economic, Social and Cultural
Rights 1966, the International Covenant on Civil and Political Rights 1966,
Inter-American Convention on Human Rights 1978. Rather, the drafters
thought the continent should develop its own conception of human rights. As
a result, member states of the Organisation of African Unity (OAU), now the
African Union (AU), considered that the ‘virtues of their historical tradition
and the values of African civilisation’ should inspire the conceptualisation of
human and peoples’ rights for the continent.
2. However, it remains unclear what exactly African values are. Throughout the
text, the African Charter makes no attempt to define or clarify what is meant
by either the phrase ‘virtues of historical tradition and the values of African
civilisation’ used in the Preamble, or the phrase ‘positive African cultural
values’ as used in the text of the Charter.1 Over the course of the past four
decades, scholars have attempted – to varying degrees - to guess the intention
of the drafters in relation to these phrases and articulate a practical
interpretation of these phrase. While some scholar argue that, others have
stated that the human rights and African values are incompatible.2 Yet, no
other intervening factor has confronted the implications of that portion of the
Charter than the increasing globalisation of culture and values. With
globalisation has come a class of cultures, values and identity that altogether
press for an unravelling, so to speak, of the mystery behind the phraseology in
the African Charter of what is meant by African historical tradition and values
in the context of human rights.
1 African Charter Art 29(7).
2 A Oyowe ‘Strange bedfellows: Rethinking ubuntu and human rights in South Africa’ (2013) 13
African Human Rights Law Journal 103.
1
3. Hence, from the outset, it is necessary to state that while the African
Commission does recognise the fundamental principles of universality,
inalienability interrelatedness, and interdependence of international human
rights norms, the African Charter is conceptualised with African values and
historical tradition in mind.
4. The African continent has existed for millennials and along with it, numerous
enduring cultures and traditions. As longstanding traditional values and
cultural practices in African countries increasingly come face-to-face with what
are perceived to be ‘non-African’ values and cultures, it has become important
to conduct a reality check on the original conceptualisation of human and
peoples’ rights underpinning the Charter. From the perspective of the African
Commission on Human and Peoples’ Rights (African Commission), this task
cannot and should not be undertaken with a blind allegiance to Western or
other cultural philosophies.
5. This is more so because the Commission is an institution established by
Africans for Africa. In the case of Social and Economic Rights Action Centre
(SERAC) and Another v Nigeria, the Commission noted that:
The uniqueness of the African situation and the special qualities of the African
Charter on Human and Peoples’ Rights imposes upon the African Commission an
important task. International law and human rights must be responsive to African
circumstances. Clearly, collective rights, environmental rights, and economic and
social rights are essential elements of human rights in Africa. The African
Commission will apply any of the diverse rights contained in the African Charter.
It welcomes this opportunity to make clear that there is no right in the African
Charter that cannot be made effective.3
6. In the light of this contextual responsibility of the Commission, the continent’s
painful history of slavery and colonialism and the resulting imposition of
values that have been fundamentally out of place with the historic traditions
and values of the peoples on the continent require that continental institutions
remain ever mindful of obtrusive tactics designed to manipulate the African
population and dilute the authenticity of African identities, cultures and
values. As Adesoji notes, the imposition of values not in conformity with “the
people’s authentic socio-cultural background and ontology came with Arab
3 Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR
2001) para 68.
2
and European imperialism”. For example, during the colonial era, African
historical affinities with language, clothing, dispute resolution and music were
fundamentally distorted in favour of Western and Islamic ones. To date, not a
few Africans continue to find ways to express their authentic selves through
their local dialect, attire, culture and education where they have been forced to
speak European languages, wear European clothes and act like Europeans in
their localities and professions.
7. However, it is also worth emphasizing that Africa not a monolithic continent
unified in its worldview, life philosophy and belief systems.4 Africa is neither
a single national unit nor a homogenous enclave of peoples with a single
cultural identity and traditional value system. It is a region of diverse nations,
nationalities and ethnicities with over 2 000 spoken languages, varying
cultures, identities and traditions.5 Not a single code of conduct captures the
diversity of African cultures, histories and current circumstances.6 With this
understanding in mind, and while similarities may exist, there are no uniform
values and traditional systems applicable in African States.
8. In relation to the withdrawal of the Observer Status granted to the Coalition of
African Lesbians (CAL) and the AU Executive Council’s decisions, this
research will therefore attempt to dispassionately analyse the context of the
withdrawal against the backdrop of African historical tradition and cultural
values. This introductory section has provided a rough background for
undertaking the paper. The next section will provide the rationale for the
analysis on African values. Thereafter, in the third section, the paper will
consider African values and historic traditions in some detail. The fourth
section will briefly consider the foundation laid by the 2006 Paper on the
Commission’s interpretation of Article 59 of the African Charter. Section five
will look at the Executive Council’s decisions. Section Seven will reflect on the
granting of Observer Status to the Coalition of Lesbians by the Commission.
Section Eight will weigh in on the granting of Observer Status to CAL. Section
4
Statista
‘Africa:
number
of
living
languages
by
country
2022’
(2022)
https://www.statista.com/statistics/1280625/number-of-living-languages-in-africa-by-country/
(accessed 14 April 2023).
6 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of
Endorois Welfare Council v Kenya (2009) AHRLR 75 (ACHPR 2009) para 147.
5
3
Nine will consider the implication of interferences by AU policy organs. The
final chapter will conclude the paper.
II.
RATIONALE FOR THE ANALYSIS ON AFRICAN VALUES
9. The primary basis for this analysis is to determine the nature and extent the
Commission should take into account fundamental African values, identity
and good traditions in its engagement with issues, States Parties and NGOs
with respect to its mandate under the African Charter. This analysis is made
against the backdrop of Executive Council Decision Ex.CL/887(XXVII) on the
38th Activity Report of the African Commission, adopted in June 2015 during
the Executive Council’s 27th Ordinary Session. In that Decision, the Executive
Council requested the Commission to withdraw the observer status granted to
CAL and to review its criteria for granting observer status.
10. Specifically, Paragraph 7 of the Executive Council Decision:
REQUESTS the ACHPR to take into account the fundamental African
values, identity and good traditions, and to withdraw the observer status
granted to NGOs who may attempt to impose values contrary to the
African values; in this regard, REQUESTS the ACHPR to review its criteria
for granting Observer Status to NGOs and to withdraw the observer status
granted to the Organization called CAL, in line with those African Values.
11. Based on this request, the Commission has undertaken extensive deliberations
on this matter, the Commission decided at its 57th Ordinary Session, held in
November 2015, to undertake a detailed legal analysis on this matter, including
considering issues relating to the Commission’s relationships with its various
stakeholders, the notion of African values, the legal basis for the grant of
Observer Status by the Commission, and the implications of withdrawing or
retaining the observer status of non-governmental organisations (NGOs).
12. In 2018, the Executive Council, during the 32nd Ordinary Session held from 2526 January 2018 in Addis Ababa, Ethiopia, further expressed “concern on the
non-implementation of Decision EX.CL/Dex.887 (XXVII) of June 2015 on the
withdrawal of the observer status from the Coalition of African Lesbians and
REQUESTS the ACHPR to comply with the Decision”.7 In the same decision,
the Council urgently requested the convening of a joint Retreat between the
7 See EX.CL/Dec.995(XXXII).
4
Permanent Representatives’ Committee (PRC) and the Commission to iron out
various concerns expressed about the relationship between the Commission
and the AU Member States and Policy Organs “to improve their dialogue and
resolve outstanding issues”.
13. The persuasions of the Executive Council did not end there. During the 33rd
Ordinary Session of the Executive Council, held from 28-29 June 2018 in
Nouakchott,
Mauritania,
the
Council
further
decided
in
EX.CL/Dec.1015(XXXIII) that:
the work of the ACHPR should be aligned with the Constitutive Act, Agenda 2063,
African Common Positions, institutional reform of the Union, and decisions of the
policy organs taking into consideration the virtues of historical tradition
and the values of African civilization which should inspire and
characterize their reflection on the concept of human and peoples’ rights.8
14. Beyond the issue pertaining to withdrawal of CAL’s Observer Status, the
Commissions’ decision was informed by its broader and growing concern
about the evolving trend of the African Union (AU) Policy Organs’ interference
with the contents of its Activity Reports, and the propriety as well as the
implications that these interferences might have for the operational autonomy
of the Commission.
15. Article 54 of the African Charter on Human and Peoples’ Rights (the African
Charter) requires the Commission to submit to each Ordinary Session of the
Assembly of Heads of State and Government (the Assembly) a report on its
activities.
16. Furthermore, as regards the Commission’s presentation of its Reports to the
Assembly, Article 59 provides that:
(1) 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.
AU Executive Council “Decision on the Report on the Joint Retreat of the Permanent
Representatives’ Committee (PRC) and the African Commission on Human and Peoples’ Rights
(ACHPR)” AU Doc EX.CL/Dec.1015(XXXIII) para 6.
8
5
(2) However the report shall be published by the Chairman of the Commission upon
the decision of the Assembly of Heads of State and Government.
(3) 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.
17. The import of these wide and vague provisions is necessary for understanding
the role expected of the Assembly with respect to the Activity Reports of the
Commission, and for determining the propriety of the cases of interferences
which have been experienced by the Commission.
18. Notably, relying on its power under Article 45(3) of the African Charter which
empowers the African Commission to interpret the provisions of the African
Charter, the Commission had previously provided its interpretation of Article
59 of the African Charter to the African Union Commission (the AUC), in the
year 2006 (the “2006 Paper”). The same is herewith attached as Annex 1 to this
Legal Analysis.
19. In the EX.CL/Dec.1015(XXXIII), the Executive Council also emphasised that:
The independence enjoyed by ACHPR is of a functional nature and not
independence from the same organs that created the body while expressing caution
on the tendency of the ACHPR acting as an appellate body, thereby undermining
national legal systems.9
20. It is true that the African Commission is considered as a functionally
independent organ of the African Union (AU), previously the Organisation of
African Unity (OAU). Its mandate includes not only to promote human and
peoples’ rights and ensure their protection in Africa, but also to interpret the
provisions of the African Charter.10 Under Article 45(1)(c) of the African
Charter, the Commission is, in the course of implementing its promotion
mandate, encouraged to “co-operate with other African and international
institutions concerned with the promotion and protection of human and
peoples’ rights.”
21. In the realisation of its substantive mandate to promote human and peoples’
rights under the African Charter, the Commission is empowered to elect its
9 As above, para 5.
10 African Charter art 45(1)(2)(3).
6
own Bureau and make its own rules of procedure.11 Based on this normative
stipulation of the Charter, the Commission proceeded to constitute its own
Bureau and adopt its Rules of Procedure. However, while these provisions
suggest that the Commission should have some degree of independence as a
quasi-judicial body, its place and functioning within the superstructure of the
OAU and, subsequently, the AU, have never been in doubt for several reasons.
22. First, the African Commission is expressly stated in the Charter to be
“established within the Organization of African Unity”.12 This suggests that
while the Commission is established by a free-standing instrument such as the
African Charter, it was expressly understood that it would operate within the
framework of the AU.
23. Second, the leadership and management of the African Commission is elected
and appointment by the AU policy organs. Under the African Charter, the AU
Assembly of Heads of State and Government elect the members of the African
Commission from a list of persons nominated by the State Parties. As a matter
of course, the specific processes for the nomination, election and departure of
the members of the Commission are managed and superintended by the
Chairperson of the AU Commission.
24. Third, the Chairperson of the AU Commission appoints the Secretary of the
Commission and provides the staff and services necessary for the effective
discharge of the duties of the Commission. This means that it is the AU that
bears the costs of staff and services as well as the day-to-day running of the
Commission.
25. Therefore, it is understood that the request by the AU Executive Council that
the Commission should “take into consideration the virtues of historical
tradition and the values of African civilization” in its reflection on the concept
of human and peoples’ rights is predicated on its statutory relationship with
AU policy organs.
III.
AFRICAN VALUES AND HISTORIC TRADITIONS
26. There is no specifically defined idea of what African values and historical
traditions are. However, various scholars have attempted to proffer useful
11 African Charter art 42(1)(2).
12 African Charter art 30.
7
guides on what might be seen as African values. For instance, the book Echoes
of Ancient African values gives an epistemological idea of what is meant by
“values”. In that book, Bailey stated that “[t]he term ‘values’ embrace[s] both
‘value’ and ‘worth’.13 To Bailey, ‘value’ pertains to characteristics in something
recognised for its usefulness in a material sense, whereas ‘worth’ pertains to
esteem or relates to things desired for their own sake in an immaterial or
intangible way. Esteem as an intrinsic element of values manifests in regard,
respect and appreciation of something.14 Bailey adds that “Values” are “lifeshaping guides that affect all of one’s significant choices, decisions and solution
approaches”.15
27. Values can be institutional and cherished by an individual and by a group of
people. This is because values can be standards that members of the
community follow in their personal and communal interaction towards the
achievement of commonly identified social goals. In the realization of the goals,
it is the people that determine who should be praised or reprimanded for their
actions.16
28. The most important characteristics of a people’s identity, culture, traditions
and way of life which they consider fundamentally useful to their sense of who
they are and which they hold in high esteem can be regarded as their values.
This may be manifested in a community’s philosophy or constitution, the
forms of social behaviour accepted as important to a people, in the form of
dressing or the conditions of social engagement accepted by a people. Values
are archetypical guides of do’s and don’t’s for getting through life to which
communities have placed value and worth.
29. If this definitional attempt of the idea of values is anything to go by, then it
suggests that African values may be considered as the characteristics,
traditions and belief systems of Africans that are recognised for their
usefulness to the identity, culture, morality and ethos of any given group of
people or community in Africa. African values are reflected in the esteem and
worth accorded by Africans to certain aspects of African behaviours, traditions
and cultures, which are desired by African societies to date and which are
highly regarded, respected and appreciated by various peoples in Africa.
13 JA Bailey Echoes of ancient African values (2005) 2.
14 JA Bailey Echoes of ancient African values (2005) 2-3.
15 As above.
16 BO Igboin “Colonialism and African cultural values” (2011) 3(6) African Journal of History and
Culture pp. 96 98. Cf T Metz “African values and human rights as two sides of the same coin: A
reply to Oyowe” (2014) 14 African Human Rights Law Journal 308-309. 311. *
8
30. African culture has been regarded as the peoples’ way of life.17 Culture is often
steeped in tradition, by which is information hand-down from one generation
to another. As Bailay acknowledges, “Africans have always been a people
guided by tradition.”18 African values which are embedded in culture and
tradition because they are highly regarded, respected and appreciated –
whether moral, peremptory or prohibitive – are the people’s way of life, their
value systems, traditions, customs and practices which are accepted by the
people.
31. While it is understood that culture, tradition and identity vary from
community to community, people to people, and place to place in Africa,
generic themes on socially accepted behaviours or cultural practices may
however find expression across communities. As Awoniyi notes, “The
interpretive exposition and presentation of values generated by traditional
African societies covers many aspects of the African cultural life.”19 For
instance, in many African societies, people place emphasis on communitarian
considerations such as the centrality and authority of the family and
community to one’s sense of self and in the making of life choices. For instance,
it is not uncommon to hear Africans say “I am Luo”, “I am Yoruba”, “I am
Zulu” or “I am Okoloise”. Besides respect for the community, other values
which make up generic social ethos in African communities include respect for
the institution of marriage, respect for elders and traditional institutions,
respect for religious deities, respect for one’s body, to name a few.
32. With regard to respect for the community, a fundamental African ethos is the
communitarian philosophy that community interests supersede those of any
single individual. In African communitarian philosophy, there is the
understanding that group interests are formed by consensus on what is most
beneficial to the group’s preservation. As such, where individual interests clash
with group interest, the group interest must prevail.
33. The idea of African communitarian philosophy fundamentally underpins the
African Charter. In the Travaux Preparatoires of the Charter, the drafters first
and foremost considered the “Reference to African values of Civilization” as
follows:
29. In the preamble of the Charter, it is stated that :
“The African Member States of the OAU…
17 GE Idang African culture and values (2015) 16(2) Phronimon 97 98.
18 Bailey (n 13) 34.
19 S Awoniyi “African cultural values: The past, present and future” (2015) 17(1) Journal of
Sustainable Development in Africa 4.
9
Taking into consideration the virtues of their historical tradition and the
values of African civilisation which should inspire and characterise their
reflection on the concept of human and peoples’ rights.”
30. In this regards, we should specify that the authors of the Charter were in
agreement, each one bearing in mind the principle ideas of the Universal
Declaration and of other declarations, making it adaptable to the needs of the
African man. Conscious of the fact that African valies and civilization are not
equally respected, it is specified that some values even though traditional, do not
have respected principles since they do not corresponde to the present needs of the
African community.
31. It is in this respect that we should interpret paragraph 7 of Article 29 of the
31Charter which insists that the individual looks out, “in his relations to society,
to preserve and strengthen positive cultural values.”
32. Amongst the values of civilization, that the Charter reflected upon, one can cite
the preponderant role of the family, which should be highlighted in our daily life
style and also in the importance of community life.
In effect, paragraphs 1 and 2 of article 18 of the Charter states that:
1.
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 and moral health.
2.
The state shall have the duty to assist the family which is the custodian of
morals and traditional values recognized by the community.
33. The other value that the Charter will protect and strengthen is the community.
According to the Charter, the notion of community includes any group of people
united under a leader for reasons of solidarity towards a specific goal, and under
legal and moral conditions. The ample space that the Charter has granted to Peoples
Rights proves the important position occupied by Peoples’ Rights in Africa and the
special interest which arises from it.
34. From the Travaux Preparatoires, the underlying importance accorded to the
family unit and the community suggest that many communities in Africa
highly regard the institutions through which the community is knit. For
example, marriage is one such institution through which the family is formed
based on heterosexual relationships. Marriage is the formal union of a man and
women to form a family unit. It is valued so much so that marriage is not
merely considered to be a decision between two individuals in an amorous
relationship but between the families of the two individuals concerned.
35. The underlying logic for the premium place on the family is that the family in
Africa is the basic unit of the community or society. Under Article 18 of the
African Charter, not only is the family recognised as “the natural unit and basis
10
of society” but States have an obligation to assist the family “which is the
custodian of morals and traditional values recognised by the community”.
36. The family is the first and primary agent of socialisation. It is the family that
builds clans. Clans form communities. Communities make up nations. Before
the modern era of technological advancement which has greatly simplified
procreational essence of marriage, the preservation of the human race was
made possible by the institutionalisation of the family unit, which is created by
the union of persons of the opposite sex. For many African societies, the
institution of marriage sustained family life, expanded communities and grew
nations. Therefore, marriage is recognised as a fundamental value of African
societies.
37. With particular regard to the vexed issue of amorous same-sex relationships
versus amorous heterosexual relationships or marital unions in Africa, many
African societies accept heterosexual relationships and marriages, whether
based in monogamy or polygamy, in order to ensure procreation and the
preservation of the community. In other words, besides everyday platonic
social relationships, traditionally, socially and culturally accepted relationships
have been and many still are between a man and a woman or between a man
and multiple women. This traditionally recognsed form of relationship is the
most socially accepted form of relationship for a majority of African societies
for the enjoyment of companionship and the preservation of the family unit.
Based on this form of accepted amorous relationship, many African societies
seriously frown upon homosexuality and amorous same-sex relationships
including the public display of such affairs.
38. That is not to say that sexual minorities or same-sex relationships never existed
in African societies. Context and nuances existed and should be recognised in
the debate. For example, in the context of traditional African socieities, samesex relationships differed from same-sex marriages. In societies where samemarriages existed, they were not indicative of amorous same-sex relationships.
This is because amorous same-sex relationships were considered immoral,
outlawed or private and African societies have often either proscribed such
behaviour, imposed sanctions or turned a blind eye to them. However, nonamorous same-sex marriages were not considered as such and were quite
different from amorous same-sex marriages as understood in the West.
39. There is evidence that non-amorous woman-to-woman marriages occurred, in
varying contexts, in several African societies in West, East and Southern Africa.
For example, woman-to-woman marriages occurred among the patrilineal
Igbo and Kalabari ethnic groups in Nigeria where women who had fertility
problems or who had no sons and widows could marry women in order to
11
have a male progeny.20 In some other African societies, non-amorous womanto-woman marriages occurred in the form of proxy marriage did occur, where
a man is wedded in his absence by his mother or parents. This form of marriage
is not considered as an amorous same-sex marriage as it is understood that
what is being conducted is a proxy marriage as some African scholars have
wrongly mischaracterised.21, As Achebe22 and Amadiume23 have clarified,
such marriages were not of a sexual nature, but rather of economic and
political.
40. The custom of non-amorous woman-to-woman marriages is similarly
practiced with the matrilineal Northern Sotho people of Lovedu, in the
Limpopo Province of South Africa led by a woman chief. Under Lovedu
customs and tradition, older women who have no daughters to take care of
them or have no kids to continue the family line may marry younger women
to take care of the household.24 However, it is understood that the relationship
between is non-amorous but merely political and economic.
41. These ample nuances in the traditional history of African societies with regard
to amorous or non-amorous same-sex relationships and marital unions lie at
the heart of the values which should be promoted and protected and preserved
as African values and historic tradition.
42. It is worth mentioning that values and traditions evolve and African values
and traditions have evolved over millennials. However, there is no indication
that African societies are decided to change the fundamental core of their
identity – the communitarian philosophy – on which the ideas around
relationships rests – whether social, cultural, marital or simply amorous.
43. As stated above, African values are expected to inspire the Commission’s
conception of human and peoples’ rights under the African Charter. In Centre
for Minority Rights Development (Kenya) and Minority Rights Group International
on behalf of Endorois Welfare Council v Kenya,25 the Commission noted that:
20 KC Nwoko ‘Female-husbands in Igbo land: Southeast Nigeria’ (2012) 5 Journal of Pan African
Studies 72, 76 & 78. Also see JR Cardigan ‘Woman-to-woman marriages: practices and benefits in
Sub-Saharan Africa’ (1998) 29 Journal of Comparative Family Studies 89-90.
21 MW Kareithi “A historical-legal analysis of woman-to-woman marriage in Kenya” (2018) LLD
Thesis, University of Pretoria, Pretoria http://hdl.handle.net/2263/65665 (accessed 15 April 2023)
176.
22 N Achebe Farmers, traders, warriors, and kings: Female power and authority in northern Igboland, 19001960 (2005) .
23 I Amadiume Male daughters, female-husbands: Gender and sex in an African society (1987) 91.
24 Kareithi (n 19).
25 (2009) AHRLR 75 (ACHPR 2009) para 149.
12
the African Charter is an innovative and unique human rights document compared
to other regional human rights instruments, in placing special emphasis on the
rights of ‘peoples’. It substantially departs from the narrow formulations of other
regional and universal human rights instruments by weaving a tapestry which
includes the three ‘generations’ of rights: civil and political rights; economic, social,
and cultural rights; and group and peoples’ rights.26
44. This suggest that the Commission does need to strike a delicate balance
between the requirement that that African values and tradition should inspire
its conception of human rights in the implementation of its mandate and its
engagement with civil society organisations whose interests may not always
be consistent with those values. Therefore, based on the decision of the AU
Executive Council, the Commission is invited to reflect on how well it has
struck this balance.
45. In the Travaux Preparatoires, the drafters specifically deliberated on “the African
Concept of Human Rights” thus:27
34.
Nothing can dispute the fact that there exists a specific African concept of
Rights and more especially Human Rights. In Africa, Right is not seen as a
weapon that is placed at the disposition of the individual to help defend
himself against the group. Instead it is considered a set of protective rules
and regulations of a community which an individual is a part of.
This African idea of Right and Human Rights should not be interpreted as
the suppression of the individual’s rights. On the contrary, in the
traditional African society, if the privileged topic of Right is centred around
the community, then the individual maintains his freedom and the specific
nature of his Rights. This is wiped out in the community in which the
individual expects to find in return satisfaction of his basic needs.
35.
This double character is reflected by the Charter which makes provision for
the rights of individuals as well as Peoples’ Rights linking one to the other
and linking their origin to human dignity.
46. The Travaux Preparatoires makes clear that the African conception of human
rights is underscored by the African communitarian philosophy which sees
human rights “a set of protective rules and regulations of a community which an
individual is a part of”. The Travaux Preparatoires further emphasise that
26 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of
Endorois Welfare Council v Kenya (2009) AHRLR 75 (ACHPR 2009) para 149.
27 Travaux Preparatoires of the African Charter on Human and Peoples’ Rights para
13
underlying the African notion of rights is “Right is centre around the
community” and the positive values and traditions of the community.
47. This suggests that where the Commission may have acted in any way that
undermines this objective of the African Charter, they AU policy may make a
request for such a consideration in line with the AU Executive Council’s
decision.
IV.
THE
2006
PAPER
ON
THE
INTERPRETATION OF ARTICLE 59
COMMISSION’S
48. The 2006 Paper was in response to the decision of the Assembly
Assembly/AU/Dec.101 (VI)28, which authorized the publication of the 19th
Activity Report of the Commission and its annexes, except for those parts
containing the Resolutions on Eritrea, Ethiopia, the Sudan, Uganda and
Zimbabwe, in order to give the referenced Member States time, to present their
views on the said Resolutions to the Commission.
49. Relying on its power to interpret the African Charter under Article 45(3) of the
same, the Commission took the view that the confidentiality requirement
under Article 59(1) only applies to measures under Chapter III of the African
Charter, which covers fact-finding missions and the Communications
procedure, and that the publication of a report in respect of those measures is
covered by Article 59(2) which requires the Chairperson of the Commission to
publish the report relating to those measures upon a decision of the Assembly.
50. On the other hand, it took the position that promotional functions under
Article 45 and Concluding Observations in respect of State Reports, which are
covered under Article 62, clearly fall outside the scope of Chapter III, and
therefore are not covered by the confidentiality requirement.29 Consequently,
it stated that Reports covering activities of the Commission under these
Articles (falling outside Chapter III) could not be construed to constitute
“measures” covered by the confidentiality requirement under Article 59(1) of
28 Decision on the 17th Annual Activity Report of the African Commission on Human and Peoples’
Rights – Doc.EX.CL/109(V), Assembly/AU/Dec.49 (III) at para 5.
29 Article 54, which falls under Chapter III of the Charter, generally provides that “[t]he
Commission shall submit to each Ordinary Session of the Assembly of Heads of State and
Government a report on its activities”. This would entail a report on both its promotion and
protection activities. One could therefore argue that in accordance with Article 54, promotional
activities would also be covered under “the present Chapter” as stated under Article 59 (1), and
therefore remain confidential until adopted by the Assembly.
14
the African Charter, and as such, that its Chairperson does not require the
authorization of the Assembly to publish any report on such activities which
do not fall under Article 59(1) and (2). Rather, it opined that all that the
Commission is required to do is place a report of such activities before the
Assembly in accordance with Article 59(3) and once that has been done, the
Commission is at liberty to publish the said report. It therefore does not require
adoption of the report by the Assembly.
51. The relevant promotional activities covered would include: resolutions, letters
of appeal, promotion mission reports, concluding observations, press releases,
subsidiary instruments such as guidelines and general comments, and the
grant of observer status to NGOs or affiliate status to National Human Rights
Institutions (NHRIs), amongst others.
52. Interestingly, the above position as set out in the 2006 Paper appears to be the
interpretation that the AU Commission (AUC) has also given to the
interpretation of Article 59, as the African Union Handbook 2015, under the
section on the ‘African Commission on Human and Peoples’ Rights’ indicates
that:
The Commission submits a report of its activities to all AU Assembly
ordinary sessions. These reports are considered by the Executive Council on
behalf of the Assembly. The Commission may publish information about
its protective activities only after the Executive Council and Assembly
have adopted the report. The Executive Council can withhold
authorization for publication of these reports and has done so.30 [Emphasis
added]
53. It would therefore appear that both the Commission and the AUC have a
common understanding and are clear about the scope of the confidentiality
requirement under Article 59.
54. While it may be argued that this matter remains unsettled for the reasons that:
(i) the AUC and the AU Policy Organs are not one and the same; and that (ii)
the AU Policy Organs have since the 2006 Paper issued other decisions which
interfere with the autonomy of the Commission; the Secretariat is of the view
that there is no for the Commission to re-interpret this aspect of Article 59. At
30 Last paragraph, page 89, AU Handbook 2015.
15
best, it can be reiterated to the AUC, which is mandated to advise the AU
Policy Organs through the Office of the Legal Counsel, on legal matters.
55. Nonetheless, the Secretariat notes that the Commission’s interpretation of
Article 59 as regards its protective mandate would need to be revisited, in
order to clarify the scope of the powers of the Assembly to make a ‘decision’
regarding its publication.
V.
INTERPRETING THE EXECUTIVE COUNCIL DECISIONS
56. In light of the observations regarding the interpretation (and common
understanding of the scope) of Article 59 of the African Charter in the 2006
Paper, the question would then be whether the said interpretation as regards
promotional activities of the Commission would be sufficient to resolve the
decision of the Executive Council on CAL, bearing in mind that the grant of
Observer Status is not a ‘protective’ but a promotional activity of the
Commission?
57. If this was the case, then the simple solution would be for the Commission to
reiterate this position, which would be to the effect that the Assembly is only
required to take note of and cannot reverse or in any way interfere with the
Commission’s decision on the CAL Observer Status. However, this would
appear not to be the case, and the previous interpretation of Article 59 cannot
adequately address the current quandary as the decision on CAL raises a
number of other issues, which have not been covered by the 2006 Paper, for
the following reasons:
(a)
While indeed, the grant of Observer Status by the Commission would
in light of the previous interpretation of Article 59, not require the AU
to take a decision on its publication, and would rather be an activity
which falls under Article 59(3) which the Assembly should simply take
note of, without interfering with its contents, in the instant case, the
basis for the interference is premised on the contention that the grant of
Observer Status and therefore the decision of the Commission in respect
thereof is incompatible with the African Charter and the legitimate
expectations of the State Parties thereto. Specifically, the States contend
that the Commission’s decision was not in line with the African values
that are required to be taken into consideration when interpreting and
applying the African Charter.
16
(b)
Therefore, the issues raised in Executive Council Decision
Ex.CL/887(XXVII) exceed the scope of the 2006 Paper, and touch on a
number of other conceptual and substantive issues which the
Commission considers to require detailed analyses, in order for the CAL
issue and the overarching issue of the operational autonomy of the
Commission to be properly disposed of. These include the notion of
African values particularly within the context of the African Charter,
vis-à-vis the legal basis for the grant of Observer Status by the
Commission; the implications of withdrawing or retaining the Observer
Status of CAL for the future of the Commission; separation of powers
within the AU and the autonomy of the Commission.
(c)
The questions then are:
(i) What are African Values, and what does the African Charter say
about the notion of African values? How is this relevant to the
Commission’s interpretation and application of the Charter,
particularly as regards the grant of Observer Status to NGOs?
(ii) If indeed the notion of African Values is relevant to the grant of
Observer Status by the Commission, how is the grant of observer
status to CAL incompatible with this?
(iii)
What is the implication of a contention by States that an act
of the Commission undertaken in line with its procedures is
incompatible with the Charter?
(iv)
What is the implication of the request by States for the
Commission to reverse its decision on the grant of observer status
i.e., what are the implications of withdrawing or retaining the
observer status of CAL for the future of the Commission?
58. Furthermore, in light of: (i) the wider impact of the relevant decision of the
Executive Council on the autonomy of the Commission; (ii) some past
decisions of the Executive Council which interfered with both promotional and
protective activities of the Commission that had been duly carried out in line
with its Rules of Procedure31; and (iii) the Commission’s instruction to the
31 These include Executive Council Decision Ex.CL/887(XXVI) on the 37th Activity Report where
the Executive Council decided that certain decisions on Communications contested by Rwanda “…
17
Secretariat; the current analysis would, as earlier mentioned, also need to
examine the scope of the confidentiality requirement under Article 59 (1) & (2),
and the extent of the powers of the Assembly to take the decision whether or
not to publish the report on the protective activities of the Commission which
fall under these provisions, especially when such protective activities have
been undertaken in line with the Rules of Procedures and due processes of the
Commission.
VI.
REFLECTIONS ON THE GRANTING OF OBSERVER
STATUS TO CAL
(a) The Legal Framework for the Grant of Observer Status
59. At its 56th Ordinary Session, which took place from 21 April to 07 May 2015, in
Banjul, The Gambia, the Commission granted Observer Status to CAL, in line
with its ACHPR Resolution 33(XXV)98 on the Criteria for Granting and
Enjoying Observer Status to Non-Governmental Organizations Working in
the field of Human and Peoples’ Rights.
60. The relevant Resolution requires all NGOs applying for observer status with
the Commission to:
(i)
Have objectives and activities in consonance with the fundamental
principles and objectives enunciated in the OAU Charter and the African
Charter;
(ii)
Be organisations working in the field of human rights; and
(iii) Declare their financial resources.32
be expunged from the report of the African Commission for the period June-December 2014 until
Rwanda is offered the opportunity of oral hearing on the two cases, as requested through various
correspondence to the ACHPR”, para. 8; and also that the Commission should “…provide the
Member States concerned by certain paragraphs of the report and the communications therein for
such amendments as are deemed necessary and justified…” para. 7. Also, in Ex.CL/887(XXVII) on
the 38th Activity Report, the Council recommended to the Assembly “…to authorize the publication
of the 38th Report of the ACHPR; after its update and due incorporation of the proposals made by
Member States and agreed upon, within that report, as reflected in these conclusions.”
32 ACHPR /Res.30(XXIV)98: Resolution on the Cooperation between the African Commission on
Human and Peoples’ Rights and NGOs having Observer Status with the Commission
18
61. The objectives of CAL as set out in its constitutive instrument, are to:33
(i)
Advocate and lobby for the political, sexual, cultural and economic rights of
African lesbians by engaging strategically with African and international
structures and allies;
(ii)
Eradicate stigma and discrimination against lesbians in Africa;
(iii)
Build and strengthen their voices and visibility through research, media and
literature, and through participation in local and international fora;
(iv)
Build the capacity of African lesbians and our organizations to use African
radical feminist analysis in all spheres of life;
(v)
Build a strong and sustainable lesbian coalition supporting the development of
nations organizations working on lesbians issues in every country in Africa;
and
(vi)
Support the work of these national organizations in all the foregoing areas
including the facilitation of the personal growth of African lesbians and the
building of capacity within their organizations.
62. In granting the Observer Status to CAL, the Commission, through a majority
vote, was of the view that CAL fulfils the aforementioned criteria. However,
as indicated above, the Executive Council questions the compatibility of the
grant with fundamental African values, identity and good traditions, and
requests the Commission to withdraw the observer status and as well review
its criteria for granting Observer Status to NGOs, in line with those African
Values.
63. The grant of Observer Status by the Commission is founded in Article 45 (1)
(c) of the African Charter, which provides that the Commission shall cooperate with other African, and international institutions concerned with the
promotion and protection of human and peoples’ rights. In accordance with
this article, the Commission has since its inception granted observer status to
493 human rights NGOs, who are considered vital partners of the Commission.
33 The Constitution of the Coalition of Africa Lesbians, Section D, on Aims and Objectives.
19
64. According to the above-referenced Resolution, the grant of this status enables
the NGOs to participate directly in the Commission’s activities, including:
(i)
Being invited to be present at the opening and closing sessions of all
Sessions of the African Commission;
(ii)
Having access to the documents of the Commission subject to the
condition that such documents shall not be of a confidential nature and
shall not deal with issues that are of relevance to their interests;
(iii)
Being invited specially to be present at closed sessions dealing with
issues of particular interest to them;
(iv)
Being authorized by the Chairperson of the Commission to make a
statement on an issue that concerns them, subject to the text of the
statement having been provided, with sufficient lead-time, to the
Chairman of the Commission through the Secretary to the Commission;
(v)
Being given the floor by the Chairperson of the Commission to respond
to questions directed at them by participants; and
(vi)
Requesting to have issues of a particular interest to them included in the
provisional agenda of the African Commission, in accordance with the
provisions of the Rules of Procedure.34
65. With regard to the obligations of NGOs that have observer status, the
Resolution also requires such NGOs:
(i)
To undertake to establish close relations of co-operation with the
African Commission and to engage in regular consultations with it on
all matters of common interest; and
(ii)
To present their activity reports to the Commission every two years.
66. Where NGOs are in default of the above-stated obligations, the Resolution
reserves the right of the Commission to take measures against such NGOs
including: non-participation in sessions; denial of documents and information;
34 Chapter 2, Res.33 (XXV) 98.
20
and denial of the opportunity to propose items to be included in the
Commission’s agenda and of participating in its proceedings.35
67. Furthermore, the Resolution also stipulates the grounds for the suspension or
withdrawal of the Observer Status of an NGO. It provides that “Observer
status may be suspended or withdrawn from any organisation that does not
fulfil the present criteria, after deliberation by the Commission.” 36A holistic
reading of the Resolution would seem to suggest that the criteria referred to in
this provision, are the criteria for the grant of observer status in the first place,
as earlier set out above. This would therefore suggest that a withdrawal or
suspension could only occur where, after the grant of a status in the first place,
the NGO is thereafter found to have fallen short of these standards.
(b)
The relevance of “fundamental African values, identity and good
traditions “to the grant of Observer Status
68. As earlier indicated, the request of the Executive Council Decision for the
withdrawal of CAL Observer Status and for the review of the Commission’s
criteria for the grant of Observer Status, is predicated on “the fundamental
African values, identity and good traditions”, which the Commission is
requested to take into account. This request supposes that the Commission
should, in interpreting and applying Article 45(1)(c) of the Charter, take into
account the referenced fundamental values, identity and good traditions.
69. In light of this requirement, a review of the African Charter reveals that it was
an explicit intention of the drafters of the Charter that it should account for the
special features of the African tradition of human rights and values. The
following formulation in the preamble of the Charter is pertinent:37
The African States members of the Organization of African Unity, parties
to the present convention entitled African Charter on Human and Peoples'
Rights … [t]aking 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...
35 Chapter 3, as above.
36 Chapter 4, Paragraph 3, as above.
37 Claiming Human Rights: Guide to International Procedures Available in Cases of Human Rights
Violations in Africa, http://www.claiminghumanrights.org/299.html.
21
[h]ave agreed as follows… 38
70. Also, in its operative part, Article 17(3) on the right to education provides that
“[t]he promotion and protection of morals and traditional values recognized
by the community shall be the duty of the State”,39 while Article 18(2) on
protection of vulnerable groups provides that “[t]he State shall have the duty
to assist the family which is the custodian or morals and traditional values
recognized by the community.”
71. Furthermore, under Chapter 2 which imposes duties on individual
beneficiaries of the Charter, Article 27 (2) provides that “the rights and
freedoms of each individual shall be exercised with due regard to the rights of
others, collective security, morality and common interest, and Article 29 (7)
stipulates that “the individual shall also have the duty “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 wellbeing of
society”.
72. Perhaps, the most relevant reference to traditional values which may impact
the interpretation of Article 45(1) (c) and indeed the whole Charter is the one
contained in the 5th Preamble, as set out above; because it suggests that
“historical tradition and the values of African civilization” should be inspire
the interpretation of the entire Charter.
73. The interpretative value of the preamble of an international convention is
prescribed in Article 31 of the 1969 Vienna Convention on the Law of Treaties
which provides that "[t]he context for the purpose of the interpretation of a
treaty shall comprise, in particular, the text, including its preamble and
annexes".40 In other words, the determination of the meaning of a particular
provision is based on an examination of the treaty text as a whole, including
the preamble.
38 Preambles 1 & 5 to the African Charter, with emphasis on preamble 5 [Emphasis added].
39 Some critics of the Charter have called the provision of Article 17 into question, claiming that it
defends some human rights violations in certain African states by referring to African traditions.
See Footnote 10 above.
40 See Vienna Convention on the Law of Treaties, May 23, 1969, Art. 31. See also See Manual for
drafting ILO Conventions, accessible at http://learning.itcilo.org/ilo /jur/en/ 2_1_2_1.htm.
22
74. The above position is supported by the practice of the Commission, in which
preambles to the African Charter have been used in its jurisprudence for the
purpose of interpreting the scope of a given provision of the Charter.41
However, notably, the above provision also implies that treaties must be given
a holistic interpretation, and the preamble is only amongst the elements to be
considered.
75. Furthermore, a review of the travaux prepatoire of the African Commission
reveals that the drafters of the African Charter were deliberate in their decision
to preserve “traditional African values” and incorporate these into the
instrument. For instance, the report of the Second Session of the OAU
Ministerial Conference on the Draft African Charter on Human and Peoples'
Rights Banjul, The Gambia 7 - 19 January 198142 indicates that:
“The desire to preserve traditional African values is evidenced in the Draft
Charter as a whole by the special importance attached to the protection of
the family, the preservation of moral values, the definition of the respective
rights and duties of peoples and individuals, and the determination of a
legal context most favorable to the exercise of the fundamental rights and
freedoms of man, for prior to the preparation of Conventions on human
rights those rights and freedoms existed, and were respected in African
traditions.
The Charter gave importance to… the right of traditional African cultural
values to be protected; the right to peace; the right to a healthy environment
and the right to development. A most distinguishing feature of the Charter
is, in addition to the rights of individuals and peoples, the provision of
their respective duties to the community; for it recognizes that the
individual has certain obligations towards his fellow men, the family,
society, the state and towards the national and international community.
For their right to existence, equality, liberation if oppressed, free disposal
of wealth and natural resources, overall satisfactory environment,
economic, social and cultural development, Africans will be obliged to
ensure the exercise of the right to development, to promote co-operation
among themselves, to eliminate all forms of foreign exploitation, to protect
41 See e.g. Communication 101/93 Civil Liberties Organisation (in respect of the Nigerian Bar
Association) / Nigeria (1995) (ACHPR).
42 Banjul, The Gambia 7 - 19 January 1981.
23
morals and traditional values recognized by the community and to
guarantee respect for the rights and freedoms enshrined in the African
Charter on Human and Peoples' Rights.” [Emphasis added].
76. The question then is: what are these ‘traditional African Values’. The Charter
itself does not provide any definition of these, neither has the meaning nor
scope been expounded in the jurisprudence of the Commission. However, in
its interpretation and application of the Charter, the Commission has
repeatedly called for an end to practices which may be perceived as “African”
but which have the effect of adversely affecting the rights of individuals,
including female genital mutilation, early marriage, ritual killings and mob
violence.43 Consequently, practices, the end result of which negatively affect
an individual’s rights or promote intolerance, discrimination, inequality or
even hatred cannot be perceived by the Commission as positive, and would be
found to negate the rights guaranteed under the Charter.
77. Moreover, within the broader framework of the AU, the values and guiding
principles of the organisation can be gleaned from its Constitutive Act. In this
regard, it is noted that the tenth (10th) preamble to the Constitutive Act
indicates that the Member States are “[determined] to promote and protect
human and peoples’ rights, consolidate democratic institutions and culture,
and to ensure good governance and the rule of law”. Likewise, Article 3(h)
which sets out the objectives of the Union states that these include to “promote
and protect human and peoples’ rights in accordance with the African Charter
on Human and Peoples’ Rights and other relevant human rights instruments”,
while Article 4(m) enunciates the principles in accordance with which the
Union shall function as including “respect for democratic principles, human
rights, the rule of law and good governance.”
78. Consistent with the above-referenced objectives and principles, the Assembly,
in 2012, organized its session around the theme of ‘Shared Values’, including
declaring the year 2012 as ‘the year of Shared Values in Africa’. 44 Within the
43 See the various Concluding Observations of the Commission on the Periodic Reports of State
Parties, as well as Mission Reports, available at http://www.achpr.org/search/?t=831 and
http://www.achpr.org/search/ ?t =831|834. See also the Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Women in Africa (the Maputo Protocol), Articles 5 (b)
and 6 (b).
44 See Assembly/AU/ Decl.1 (XVI): Declaration on the theme of the Summit: ‘Towards greater
unity and integration through shared values’.
24
framework of this theme, the Assembly reiterated that the Shared Values
embodied in the Constitutive Act of the African Union, amongst others,
emphasise the significance of democratic governance, popular participation,
the rule of law, human and peoples’ rights and sustainable socio-economic
development, and also that all OAU/AU treaties, decisions and declarations
are part of the ‘shared value’ system of Africans.45 The relevant Shared Values
instruments subsequently compiled and compiled by the AU Department of
Political Affairs include all human rights instruments adopted within the
framework of the AU, including the African Charter.46
79. Consequently, the Shared Values of the AU would in itself include the
protection of human and peoples’ rights, comprising the protection of a
vulnerable collective minority from stigma, discrimination and violence, as set
out in one of the objectives of CAL.47 Also, notably, the primary normative
framework of the AU for the protection human and people’s rights as
espoused in its Shared Values, is the African Charter, and non-discrimination
and equality of all persons to benefit from the rights provided under the
Charter are the first two provisions of the Charter and the fulcrum upon which
the remaining provisions of the Charter rest.
80. Indeed, the intertwined principles of equality and non-discrimination are
essential for the effective protection of human rights, as both national
constitutions and universal and regional human rights instruments recognise.
On this issue, the Commission has observed that: “Together with equality before
the law and equal protection of the law, the principle of non-discrimination provided
under Article 2 of the Charter provides the foundation for the enjoyment of all human
rights”48 Similarly, the Inter-American Court has held that it “considers that the
principle of equality before the law, equal protection before the law and nondiscrimination belongs to jus cogens, because the whole legal structure of national and
45 As above, para. 6.
Shared Values: Our Collective Destiny, Our Collective Responsibility – Instruments and
Mechanisms, published by the AU Department of Political Affairs, in September 2012.
47 Upon review of the objectives of CAL, objectives 1 & 2 appear to relate directly to the protection
of the human rights of lesbians; however, objectives 4, 5 and 6 do not appear so, and as well their
import and implications are not clear.
48 See Communication 245/2002: Zimbabwe NGO Human Rights Forum v. Zimbabwe, ACHPR (2006),
para. 169.
46
25
international public order rests on it and it is a fundamental principle that permeates
all laws.”49
81. Notably also, the eighth (8th) preamble to the African Charter also states that
the State Parties undertake to “eliminate all forms of discrimination”, thus
confirming that non-discrimination was one of the foundational guiding
principles which informed the adoption of the Charter.
The African Charter and Non-discrimination on the basis of sexual orientation and gender
identity
82. The African Charter’s provisions strongly support the conclusion that every
person enjoys the Charter rights irrespective of their sexual orientation or
gender identity. In fact, the Commission’s 2014 “Resolution on Protection
against Violence and other Human Rights Violations against Persons on the
basis of their real or imputed Sexual Orientation or Gender Identity”50 departs
from the premise that sexual orientation and gender identity are grounds for
non-discrimination under the Charter; an explanation which was wellreceived and accepted by Member States during the presentation of the 37 th
Activity Report of the Commission which referenced this Resolution.
83. The relevant Resolution notes that acts of violence, discrimination and other
human rights violations continue to be committed on individuals in many
parts of Africa because of their actual or imputed sexual orientation or gender
identity. It states that such violence includes ‘corrective’ rape, physical
assaults, torture, murder, arbitrary arrests, detentions, extra-judicial killings
and executions, forced disappearances, extortion and blackmail.
All-encompassing provision on rights-holders
84. Article 2 of the Charter stipulates that “[e]very individual shall be entitled to
the enjoyment of the rights and freedoms recognized and guaranteed in the
present Charter without distinction of any kind such as race, ethnic group,
49See Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of 17 September 2003,
Juridical Condition and Rights of Undocumented Migrants, para. 101.
50 ACHPR/Res.275(LV)2014: Resolution on Protection against Violence and other Human Rights
Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity
Adopted at the 55th Ordinary Session of the African Commission in Luanda, Angola, 28 April – 12
May 2014.
26
color, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or other status.” [Emphasis added]
85. Article 3 also stipulates that “[e]very individual shall be equal before the law”
and also that “[e]very individual shall be entitled to equal protection of the
law”; thus underscoring that the African Charter grants rights to everyone,
without distinction, under a State party’s jurisdiction.
86. The formulation that “every individual” is entitled to the rights in the Charter
is repeated in twelve of its provisions51, and the use of the related terms “every
human being”, “no one” and “every citizen”52 confirms the inclusive and allembracing scope of rights holders under the Charter, and strongly support the
conclusion that individuals should therefore not cease to be rights-holders
under the Charter on the basis of their sexual orientation or gender identity.
87. In addition, the use of the phrases “such as” and “or other status” in Article 2
of the Charter clearly shows that the list of grounds for non-discrimination is
not exhaustive. The use of open-ended language suggests that the drafters
foresaw that the African Charter ought to allow for an expansion of the specific
grounds, thus accepting the principle that the exact content of the Charter is
not frozen in time, but evolves.53 Accordingly, the Commission has
pronounced itself against discrimination based on a non-enumerated ground
- disability54, clearly establishing that ‘other status’ can be interpreted broadly
to include grounds other than those listed under Article 2 of the African
Charter.
88. Similarly, even though the Charter does not mention the concept
‘indigenous person’, the Commission has in its practice, Resolutions and
Communications recognised this concept and protected the rights of
‘indigenous peoples’ in the absence of any reference to the word or concept
‘indigenous’ in the Charter. This stands as an unequivocal example that the
protection of the Charter is not denied to groups merely because the Charter
does not explicitly recognize that group by name, and a refutation to the notion
51 Arts 2, 3, 5, 6, 7, 9, 10, 11, 12, 15, 16 and 17.
52 Arts 2, 8, and 13.
53 Norms, Case Law and Practices of Sexual Orientation and Gender Identity in the African Human
Rights System, (Background Paper to the Joint Dialogue on SOGI, held on the margins 5 7th Ordinary
Session of the Commission) para 5.
54 Communication 241/2001: Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003)
paras 50, 52-54.
27
that protecting the rights of a gay or lesbian person would be tantamount to
illegitimately creating “new rights”.55
89. In particular, in one of its decisions on a Communication, Zimbabwe Human
Rights NGO Forum v Zimbabwe,56 the Commission mentioned, albeit obiter,
‘sexual orientation’ as a ground of non-discrimination. It affirmed that the aim
of the non-discrimination principle under Article 2 of the Charter is to ‘ensure
equality of treatment for individuals irrespective of’ a number of grounds,
including “sexual orientation”’, and this inclusive understanding of nondiscrimination has been reiterated in a subsequent decision, 57 as well as in its
General Comments on Article 14 (1) (d) and (e) of the Protocol to the African
Charter on Human and Peoples’ Rights on the Rights of Women in Africa.58
90. In addition to the above, it may be argued that “sex”, a factor already explicitly
provided for in Article 2 of the Charter, should be understood to include
“sexual orientation”. Notably, the UN Human Rights Committee in Toonen v
Australia clarified that the meaning of “sex” in the listed grounds of nondiscrimination under Article 2 of the International Covenant on Civil and
Political Rights, includes sexual orientation.59
(c) Limitation to Charter rights and their potential justification
91. Linked to the argument based on African traditional values is the contention
that Article 27(2) of the Charter may provide a basis to limit the rights
guaranteed by the Charter on grounds of collective security, morality and common
interest. Consequently, it may be argued that discrimination against sexual
minorities reflects the moral views of the majority. However, the Commission
has made it clear that the Charter’s interpretation cannot be conclusively
defined with reference to the views of the majority, even as it is reflected by
Parliament, acting on their behalf. In Legal Resources Foundation v Zambia, the
55 Fn 27 above, para 6.
56 Communication 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe (2006) AHRLR 128
(ACHPR 2006), para 169.
57 Communication 284/2003: Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe v Zimbabwe, (2009) (ACHPR) para 155: “Article 3 guarantees fair and just treatment of
individuals within the legal system of a given country. The aim of this principle is to ensure
equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political
opinion, religion or belief, disability, age or sexual orientation.”
58 Para. 4.
59 CCPR/C/50/D/488/1992.
28
Commission held that justification of limitations cannot be derived solely from
popular will: “Justification … cannot be derived solely from popular will, as this
cannot be used to limit the responsibilities of states parties in terms of the Charter.”60
92. Also, any limitation by a State of the rights of sexual minorities, like the rights
of everyone else, will have to be assessed on the bases of principles of
limitation that have been elaborated by the Commission, including that: such
limitation must be “strictly proportionate with and absolutely necessary for the
advantages that are to be obtained”61 and most importantly, “may not erode a right
such that the right itself becomes illusory.”62
(d) The Role of the Commission in interpreting the Charter and the Separation of
Powers within the AU
93. Closely linked with the above analysis on the Commission’s interpretation of
the scope of rights bearers under the African Charter, the open-ended grounds
for non-discrimination as well as the conditions for the limitations of rights are:
(i) the autonomous power of the Commission in interpreting the Charter; and
(ii) the principle of separation of powers.
The autonomous interpretive role of the Commission
94. As earlier referenced, Article 45 (see in particular Articles 45(2) and 45(3)) of
the Charter grants the Commission autonomous powers to interpret the
African Charter. The autonomous interpretive role of the Commission is
confirmed by its competence to interpret the Charter “at the request” of AU
political organs (in Article 45(2)).
95. The Charter endows this position to the African Commission because of the
expertise and competence of the Commissioners, who are appointed to the
African Commission by the Executive Council/ Assembly on the basis of their
expertise. (Articles 31, 38) The Commission is made up of eleven members
chosen from amongst African personalities of the highest reputation, known for their
60 Communication 211/98, (2001) (ACHPR), para. 70.
61Communication 105/93, 128/94, 130/94 and 152/96: Media Rights Agenda and Others v Nigeria
(1998) (ACHPR) paras 69 and 70. See also, Communication 242/01: Interights and Others v
Mauritania (2004) (ACHPR) para 78.
62 Communication 105/93, 128/94, 130/94 and 152/96, as above.
29
high morality, integrity, impartiality and competence in matters of human and people’s
rights; particular experience being given to persons having legal experience.63
96. Consequently, the Commission has the autonomous competence to clarify the
meanings and scope of all the rights, duties and other notions stipulated in the
African Charter, including the references to notions of ‘African Values’ and
‘morality’, because they are part of the African Charter.
97. All promotional and protective activities of the Commission concerning
human rights take into account the Commission’s role in interpreting and
applying the African Charter. As a result, the AU political organs cannot
overrule these activities as well as their outcomes (including decisions,
recommendations, reports, resolutions, grant of observer and affiliate status
etc.), by abrogating to themselves the competence to interpret the provisions
of the African Charter.
Separation of Powers within the AU
98. The Constitutive Act and the Executive Council’s own rules of procedure do
not empower the Executive Council to substitute their views for the decisions
of the Commission. Among the numerous functions of the Executive Council,
it is charged with electing members of the Commission and submitting to the
Assembly for appointment64, and also with receiving, considering and making
recommendations from other organs that do not report directly to the
Assembly.65
99. Gleaning through the enabling frameworks, the African Charter and the
Constitutive Act, and the exercise of the various functions in practice, it
becomes clear that the role that has been assigned to the Executive Council is
essentially a political role, while the Commission is given the legal role. The
Executive Council’s political role is to elect the members of the Commission.
The terms of Commissioners are limited; however during their terms, their
legal role and the Commission’s independence have to be respected. The role
of the Commission is to interpret human rights; and the political organs have
to align themselves with this interpretation. The remedy for discontent by the
political organs is restricted to its sphere of legitimate influence, which is the
63 Article 31 (1) African Charter.
64 Rule 5(f)
65 Rule 5(m)
30
process of election and adoption of normative standards; at best, the Executive
Council or the AU itself can request for the advisory opinion of the African on
any such issues pertaining to the Charter, pursuant to Article 4 of the Protocol
establishing the Court.
100. This “division of labour” within the AU gives embodiment to the principle
of the “rule of law”, with the spheres of operation of the political and quasijudicial/ judicial being respected, and not interfered with. The AU
Constitutive Act lists respect for the rule of law and good governance66as part
of its principles.
(e) Conclusion on the Compatibility of the grant of Observer Status to CAL with
“fundamental African values, identity and good traditions”
101. In view of the above analysis of Shared Values of the AU, as well as the
cogent provisions of the African Charter and the Commission’s autonomous
powers to interpret these, it is submitted that the Commission is under
obligation to ensure a holistic interpretation and understanding of the Charter
provisions in a way that enhances the well-being of all African peoples, and
clarifies points of uncertainty which may result in adversely affecting
individual and peoples’ rights. In this regard, it is considered that the logic of
the Charter – a holistic reading, informed by its object and purpose demands that non-discrimination be interpreted by the Commission broadly,
as indeed its jurisprudence has demonstrated, because exclusion from the
ambit of Article 2 would have the far-reaching effect of foreclosing reliance
on all other Charter rights.67
102. Consequent to this broad and holistic interpretation, the recognition by the
Commission of the vulnerability of sexual minorities in Africa and the need for
their protection from acts of discrimination and violence, including through
the grant of Observer Status to CAL would appear to be compatible with the
object and purpose of the African Charter, as well as the expressed Shared
Values of the AU.
103. Obviously, the clearly espoused values of the AU which emphasize respect
for human rights, may not be superseded by contestations on a political
platform such as those leading up to the problematic Decision
66 Article 4(m)
67 Fn 27 above, para 9.
31
Ex.CL/887(XXVII);68 and more importantly, as earlier stated, it is the role of
the Commission is to interpret human rights, and the political organs have to
align themselves with this interpretation.
VII. THE COMMISSION’S GUIDANCE TO STATE PARTIES
104. In light of the above analysis and conclusion that the Commission has acted
within and in line with its mandates and due processes in granting the
Observer Status to CAL, and bearing in mind the contestation by State Parties
as reflected in decision of the Executive Council, the Commission may need to
prepare a legal analysis to the AU Policy Organs through the Office of the Legal
Counsel, providing clarifications on the propriety of the grant of the CAL
Observer Status vis-à-vis the African Charter and ‘African Values’/ ‘Shared
Values’. In furtherance of its mandate to interpret the African Charter, it may
also be necessary for the Commission to adopt an interpretative instrument
which generally clarifies the scope of the rights of sexual minorities under the
African Charter, and the attendant obligations of State Parties.
VIII. WEIGHING CAL’S OBSERVER STATUS AGAINST
AFRICAN VALUES AND HISTORIC TRADITION
105. In view of the requirement under the Resolution on the granting and
enjoyment of Observer Status to NGOs, as earlier mentioned, a withdrawal or
suspension can only occur where, after the grant of a status in the first place,
the NGO is thereafter found to have fallen short of these standards. The present
Analysis finds that the objective of CAL to eradicate stigma and discrimination
against lesbians in Africa is compatible with the African Charter, and
consequently, that the grant of the Observer Status is in order. The Commission
can therefore only withdraw the Observer Status where it finds that CAL no
longer meets this criterion.
106. It should be noted however, that, objectives 4, 5 and 6 of CAL do not appear
to be related to the promotion and protection of the Charter rights, and that
their implications for the overall compatibility of CAL’s objectives with the
68 See also, Decision on the Promotion of Cooperation, Dialogue and respect for Diversity in the
field of human rights, AU Doc. Assembly/AU/17(XV) Add.9, para 4, wherein the Assembly,
without referring explicitly to sexual orientation, ‘strongly’ rejected attempts to “impose concepts
or notions pertaining to social matters, including private individual conduct, that fall outside the
internationally agreed human rights legal framework”.
32
African Charter and the AU Constitutive Act, are not clear. However, the
Commission had, in granting the Observer Status to CAL, found that these
were in order.
IX.
IMPLICATIONS OF INTERFERENCES BY AU POLICY
ORGANS ON THE COMMISSION’S INDEPENDENCE
107. Articles 30, 31 and 38 of the African Charter underpin the autonomy of the
Commission by providing as follows:
•
Article 30: “An African Commission on Human and Peoples' Rights…
shall be established within the Organization of African Unity to
promote human and peoples' rights and ensure their protection in
Africa”;
•
Article 31: “… 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 persons having legal experience… The members of the
Commission shall serve in their personal capacity.” [Emphasis added]
•
Article 38: “After their election, the members of the Commission shall
make a solemn declaration to discharge their duties impartially and
faithfully.” [Emphasis added]
108. Also, the eleventh (11th) preamble to the AU Constitutive Act indicates that
the Member States are “[determined] to take all necessary measures to
strengthen our common institutions and provide them with the necessary
powers and resources to enable them discharge their respective mandates
effectively”, while Article 4(m) lists respect for the rule of law and good
governance as part of their guiding principles.
109. All of the above provisions indicate that the Commission, as a treaty body
of the AU, is expected to operate independently without Member States
interfering with its mandates and processes.
110. In recognition of this, increasingly, the relevant political organs of the AU
have called for the strengthening of the independence of the Commission. In
the Banjul Declaration on the 25th Anniversary of the African Charter on
33
Human and Peoples‟ Rights in 2006 African leaders reiterated their “full
support to the work of the ACHPR and all human rights treaty bodies
established on the continent.‟ Positive measures to strengthen the Commission
followed. The Executive Council in its decision on the 21st Activity Report of
the Commission requested the latter to present its proposed budget
independently from the Department of Political Affairs of the AUC. A
brainstorming meeting between the Commission and the Permanent
Representatives Committee was also held in May 2007 with the aim of
“strengthening and ensuring the independence of the ACHPR.”69
111. Also, the Executive Council, has, in a number of its decisions on the Activity
Reports of the Commission, called on Member States to work with the
Commission to ensure the effective implementation of its recommendations.70
112. However, as earlier indicated in this Analysis, despite the positive steps to
strengthen the Commission as an independent AU organ, the Executive
Council has also adopted decisions which appear to contradict the
independent decision making of the Commission as set out in the African
Charter and the Executive Council decisions earlier cited above.
113. In January 2011 the Executive Council requested the Commission “to
engage concerned Member States in the verification of the facts and resubmit
its report to the 19th Ordinary Session of the Executive Council.”71 In January
2012 the Executive Council authorized the publication of the 29th, 30th and 31st
Activity Reports, while requesting the Commission “to carry out the necessary
consultations with the Member States concerned regarding allegations of
human rights violations, thus enabling it to present a balanced report to the
AU Policy Organs”.72 In January 2015 the Council invited the Commission “to
provide Member States concerned by certain paragraphs of the report and the
communications therein for such amendments as are deemed necessary and
justified”, and requested that certain decisions on Communications contested
by Rwanda “… be expunged from the report of the African Commission for the
period June-December 2014 until Rwanda is offered the opportunity of oral
hearing on the two cases, as requested through various correspondence to the
69 EX.CL/Dec.372 (XI).
SeeEX.CL/Dec.344(X), EX.CL/Dec.775 (XXIII), EX.CL/Dec.804 (XXIV), and EX.CL/Dec.841
(XXV) amongst others.
71 EX.CL/Dec.639 (XVIII).
72 E X.CL/Dec.689 (XX).
70
34
ACHPR.”73 The most recent interference is the one pertaining to CAL, and
which informed the commissioning of this Legal Analysis.
114. All of the above raise questions about the scope of the powers of the
Assembly, through the Executive Council, to ‘consider’ the Activity Report of
the Commission, as well as the concerns that these interferences with the
decisions in the Activity Reports are in disregard the autonomy of the
Commission to interpret the African Charter, and therefore compromise the
independence of the Commission as recognized in the Charter.
Article 59 and the Power of the Assembly vis-à-vis the Promotional Activities of
the Commission
This issue has already been discussed exhaustively in the 2006 Paper and in the
earlier part of this Legal Analysis (see paragraphs 9 – 15 above).
Article 59 and the Power of the Assembly vis-à-vis the Protective Activities of the
Commission
115. While the 2006 Paper concedes that the Commission’s protective activities
fall under the confidentiality requirement of Article 59(1), and that the
publication of a report in respect of these can only be upon a decision of the
Assembly (see paragraph 11 above), decisions of the Executive Council which
purport to reverse or discount protective activities which have been
undertaken in line with the due processes of the Commission, such as decisions
on Communications as was the case of Rwanda under the 37th Activity Report,
would clearly be in breach of the operational autonomy of the Commission.
116. Decisions on Communications are taken by the Commission after reading
submissions from both parties (that is, the complainant(s) and respondent
States), and considering evidence and arguments by both parties. The
procedures before the Commission therefore allow for both sides of a dispute
to be heard (usually, the complainant and the state). Even after decisions have
been taken, the Rules of Procedure provide for the possibility of reviews.
Therefore, if the Executive Council should have the competence to review the
substance of the Commission’s decisions, member states or governments that
73 EX.CL/Dec.864 (XXVI).
35
feel aggrieved by the decisions of the Commission have the opportunity to
make their case heard and to challenge the Commission’s decision, while
complainants or other affected parties would not have that opportunity. Such
practice would undermine the well-established principle of audi alteram partem.
117. Also, given that all decisions concerning human rights take into account the
Commission’s role in interpreting and applying the African Charter as earlier
set out in paragraphs 55 to 58 above, such interferences would have the effect
of eroding the operational autonomy of the Commission.
118. Such practice would also contradict relevant comparative and international
law. The relationship between human rights monitoring and enforcement
bodies and the States who created them for the purpose of monitoring their
human rights practices is a common phenomenon, nationally, regionally and
internationally. Interference, lack of autonomy and independence can serve to
undermine the objectives that the bodies have been created for. For instance,
within the UN, a balance is struck between the political role of States in creating
and sustaining human rights monitoring and enforcement bodies that are
supposed to provide oversight. All treaty bodies are elected by state parties,
and they all are required to submit annual reports on their activities to the
General Assembly through the Economic and Social Council (ECOSOC).74 In
this regard, UN human rights mechanisms have a dual function of monitoring
States parties’ compliance and domestic implementation of human rights
treaties and reporting on an annual basis to the political organs of the United
Nations system. However, there are no instances recorded of the decisions of
treaty bodies being substantively reviewed by the General Assembly.
119. In light of the above analysis, it is recommended that the Commission
submits to the AU Policy Organs through the AU Legal Counsel, an analysis
of the impact of their interferences with the protective activities of the
74 The United Nations Economic and Social Council (ECOSOC) is one of the six main organs of the
United Nations established by the UN Charter and the principal body for coordination, policy
review, policy dialogue and recommendations on economic, social and environmental issues, as
well as for implementation of the internationally agreed development goals. ECOSOC serves as
the central mechanism for the activities of the United Nations system and its specialized agencies
available at: http://www.un.org/en/ecosoc/about/index.shtml. The ECOSOC is established by
Article 61 of the United Nations Charter, and consists of fifty-four members of the United Nations
elected by the General Assembly.
36
Commission on the latter’s autonomy, drawing their attention amongst others
to relevant comparative and international law and best practices.
X.
CONCLUSIONS AND RECOMMENDATIONS
120. In the final analysis and based on the foregoing, it is clear that the African
Charter is fundamentally underscored by African values of civilization and
historic traditions. As such, the present analysis draws the following
conclusions:
(i)
As regards the Executive Council’s Decision on CAL: In light of the
Shared Values of the AU, the cogent provisions of the African Charter,
particularly those relating to non-discrimination and equality before the
law, the jurisprudence of the Commission, as well as its obligation to
give a holistic interpretation of the Charter, informed by its object
and purpose, the recognition by the Commission of the vulnerability of
sexual minorities in Africa and the need for their protection from acts of
discrimination and violence, including through the grant of Observer
Status to CAL would appear to be compatible with the object and
purpose of the African Charter, as well as the expressed Shared Values
of the AU.
It is therefore recommended as follows:
(a) The Commission may consider submitting a legal analysis to the AU
Policy Organs through the Office of the Legal Counsel, providing
clarifications on the propriety of the grant of the CAL Observer
Status vis-à-vis the African Charter and ‘African Values’/’Shared
Values’;
(b) In order to enrich its legal analysis, the Commission may also
consider requesting for amicus briefs from notable African human
rights scholars, or seeking the advisory opinion of the African Court,
on the meaning of “African traditional values” within the context of
the Charter;
(c) In addition to the Legal Analysis and in furtherance of its mandate
to interpret the African Charter, it may also be necessary for the
Commission to adopt a supplementary / interpretative instrument
which generally clarifies the scope of the rights of sexual minorities
37
under the African Charter, and the attendant obligations of State
Parties; and
(d) While the Commission and the Court are institutions of equal
ranking, inter alia, with respect to the interpretation of the African
Charter, the Commission may submit its interpretation of Article 59
to the Court, for the latter’s advisory opinion on the same.
(ii)
As regards the interference of the Policy Organs with the protective
activities of the Commission that have been duly undertaken in line
with the Charter and its Rules of Procedure: Such practice would
undermine the well-established principle of audi alteram partem, and in
general, the operational autonomy of the Commission. It would also
contradict relevant comparative and international law and practice, as
regards the relationship between human rights monitoring and
enforcement bodies and the States who created them for the purpose of
monitoring their human rights practices.
It is therefore recommended as follows:
(a) The Commission may consider submitting to the AU Policy Organs
through the AU Legal Counsel, an analysis of the impact of their
interferences with the protective activities of the Commission on the
rule of law and the latter’s autonomy, drawing their attention
amongst others to relevant comparative and international law and
best practices; and
(b) The Commission could also seek the advisory opinion of the African
Court on the scope and extent of Articles 59(1) and (2) of the African
Charter.
38
ANNEX 1
INTERPRETATION OF ARTICLE 59 OF THE AFRICAN CHARTER: THE
2006 PAPER
39