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MAY

2016

AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS, AN


INSTRUMENT THAT GUARANTEES HUMAN RIGHTS OF THE
VULNERABLE GROUPS IN AFRICA
BY
NNEJI CHRISTIAN CHIGOZIE
POSTGRADUATE STUDENT; PAN AFRICAN UNIVERSITY
DEPARTMENT OF GOVERNANCE, HUMANITIES AND SOCIAL
SCIENCES, YAOUNDE II- SOA, REPUBLIC OF CAMEROON
Email:christiannneji@gmail.com
INTERNATIONAL HUMAN RIGHT LAW
ABSTRACT:
The African Charter on Human and Peoples Rights is in indeed
to a greater extent an instrument that guarantees the Human
Rights of the African people considering the wide range of rights
it covers; the implementation mechanism establish to promote
and protect the rights and also because of its specificificity in that
It protects not only rights of individual human beings but also
rights of Vulnerable people as Africans..This is however without
its shortcomings. The Charter also emphasizes the individuals
duties towards certain groups and other individuals. Most
importantly, While some provisions of the African Charter allow
for limitations to be imposed on the exercise of the rights
guaranteed, no derogations are ever allowed from the obligations
incurred under this treaty. Adopted by the member states of the
OAS in 1981 and in force in 1984, African Charter on Human
and Peoples Rights, also known as the Banjul Charter, is the
youngest of the regional Instrument guaranteeing Human Rights.
It is also the most widely accepted of the regional charters, with
53 ratifications or accessions. The African Charter is particularly
noteworthy for specifically recognizing and guaranteeing the
rights of individuals and groups, the first human rights instrument
to do so. In its provisions, it covers a variety of civil, political,
economic, cultural and social rights, as well as the right to self-
determination, development and the environment. This work is
however tailored to size The Analysis African Charter as an
instrument guaranteeing Human rights of Africans and
5/28/2016
vulnerable people.
The African Charter on Human and Peoples Rights
is in indeed an instrument the guarantees the Human
Rights of the African people because of the wide range
it covers and because of its specificificity in that it
protects not only rights of individual human beings
but also rights of people as a continent including the Vulnerable groupsand can
not go without challenges.
The Charter also emphasizes the individuals duties
towards certain groups and other individuals.
While some provisions of the African Charter allow
for limitations to be imposed on the exercise of the
rights guaranteed, no derogations are ever allowed from
the obligations incurred under this treaty.

The African Charter on Human and Peoples Rights, (1981) as protective instrument.

The adoption of the African Charter on Human and Peoples Rights in 1981was the beginning of
a new era in the field of human rights in Africa. 1 It entered into force on 21 October 1986, and as
of 29 April 2002 had 53 States parties. Although strongly inspired by the Universal Declaration
of Human Rights, the two International Covenants on human rights and the regional human
rights conventions, the African Charter reflects a high degree of specificity due in particular to
the African conception of the term right and the place it accords to the responsibilities of
human beings. 2 The Charter contains a long list of rights, covering a wide spectrum not only of
civil and political rights, but also of economic, social and cultural rights. The African Charter
further created the African Commission on Human and Peoples Rights, to promote human and
peoples rights and ensure their protection in Africa (art. 30). In 1998, the Protocol to the
Charter on the Establishment of an African Court of Human Rights was also adopted, but, as of
30 April 2002, this Protocol had not yet entered into force, having secured only 5 of the required
15 ratifications. Lastly, work on the elaboration of an additional protocol concerning the rights of
women in Africa is in progress within the framework of the African Commission on Human and
Peoples Rights, the Commission being assisted in this task by the Office of the United Nations
High Commissioner for Human Rights. 3

1.1 The charter imposed undertakings of the States parties

1
Fatsah Ouguergouz, La Charte africaine des droits de lhomme et des peuples Une approche juridique des
droits de lhomme entre tradition et modernit (Paris, Presses Universitaires de France, 1993 (Publications de
lInstitut universitaire de hautes tudes internationales, Genve)), p. xxv.
2
Keba Mbaye, Les droits de lhomme en Afrique (Paris, Editions A. Pedone/Commission Internationale de Juristes,
1992), p. 161.
3
See Mutoy Mubiala, Le Projet du Protocole la Charte Africaine des Droits de lHomme et des Peuples relatif aux
Droits de la
Femme en Afrique, in Human Rights, Spring 2000 (OUNHCHR review), pp. 23-27.
The States parties to the Charter shall recognize the rights, duties and freedoms enshrined
[therein] and shall undertake to adopt legislative or other measures to give effect to them (art.
1).
It is further provided that they shall have the duty to promote and ensure through teaching,
education and publication, the respect of the rights and freedoms contained in the present
Charter, and to see to it that these freedoms and rights as well as corresponding obligations and
duties are understood (art. 25). Moreover, the States parties shall have the duty to guarantee
the independence of the Courts and shall allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of the rights and
freedoms guaranteed by the ... Charter (art. 26). These two latter provisions thus emphasize the
need for education, information and an independent administration of justice in order to ensure
the effective protection of human rights.
Lastly, several provisions of the Charter are also couched in the form of duties of the States
parties to ensure certain rights, such as, for instance, the promotion and protection of morals and
traditional values recognized by the community(art. 17(3)) and the right to development (art.
22(2)).

1.2 The individual and collective rights recognized

The African Charter on Human and Peoples Rights recognizes the following civil, political,
economic, social and cultural rights of individual human beings, in particular:
_ the right to freedom from discrimination on any grounds in the enjoyment of the rights and
freedoms guaranteed in the Charter art. 2;
_ the right to equality before the law and to equal protection of the law art. 3;
_ the right to respect for ones life and personal integrity art. 4;
_ the right to respect for ones inherent dignity as a human being, including freedom from
slavery, the slave trade, torture, cruel, inhuman or degrading punishment and treatment art. 5;
_ the right to liberty and to the security of ones person; freedom from arbitrary arrest or
detention art. 6;
_ the right to have ones cause heard, and the right to an appeal to competent national organs
against acts of violating ones human rights; the right to be presumed innocent until proved
guilty by a competent court or tribunal; the right to defence; and the right to be tried within a
reasonable time by an impartial tribunal; freedom from ex post facto laws art. 7;
_ freedom of conscience, the profession and free practice of religion art. 8;
_ the right to receive information and the right to express and disseminate ones opinions within
the law art. 9;
_ the right to freedom of association (art. 10) and the right to assemble freely with others art.
11;
_ the right to freedom of movement and residence within the borders of a State; the right to leave
any country including ones own and to return to ones country; the right to asylum in case of
persecution; prohibition of mass expulsions art. 12;
_ the right to participate freely in the government of ones country, either directly or through
freely chosen representatives; the right to equal access to the public service of ones country and
to access to public property and services art. 13;
_ the right to property art. 14;
_ the right to work and the right to equal pay for equal work art. 15;
_ the right to enjoy the best attainable state of physical and mental health art. 16;
_ the right to education, and freely to take part in the cultural life of ones country art. 17;
_ the right of the family, the aged and the disabled to special measures of protection art. 18.

Next, the African Charter recognizes further the following rights of peoples, namely:
_ the right of peoples to equality art. 19;
_ the right to existence of all peoples, including the right to self-determination; the right of all
peoples to assistance in their liberation struggle against foreign domination, be it political,
economic or cultural art. 20;
_ the right of all peoples freely to dispose of their wealth and natural resources art. 21;
_ the right of all peoples to their economic, social and cultural development art. 22;
_ the right of all peoples to national and international peace and security art. 23;
_ the right of all peoples to a general satisfactory environment favourable to their development
art. 24.

1.3 The charter imposed individual duties

Without providing any details, article 27(1) deals with individual duties toward certain groups by
stipulating, in general terms only, that every individual shall have duties towards his family and
society, the State and other legally recognized communities and the international community.
Next, article 28 concerns the individuals duty towards other individuals, providing that every
individual shall have the duty to respect and consider his fellow beings without discrimination,
and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and
tolerance. Lastly, article 29 enumerates several other specific individual duties, such as the
duties:
_ to preserve the harmonious development of the family art. 29(1);
_ to serve ones national community art. 29(2);
_ not to compromise the security of the State art. 29(3);
_ to preserve and strengthen the social and national solidarity art. 29(4);
_ to preserve and strengthen the national independence and territorial integrity of ones country
art. 29(5);
_ to work to the best of ones abilities and competence, and to pay taxes art. 29(6);
_ to preserve and strengthen positive African cultural values art. 29(7); and, finally,
_ the duty to contribute to the best of ones abilities to the promotion and achievement of African
unity art. 29(8).

1.4 Permissible limitations on the exercise of rights

The exercise of many of the rights and freedoms guaranteed by the African Charter is
conditioned by limitation provisions, which in some cases indicate specific aims for which
limitations might be imposed, but which in others simply refer back to the conditions laid down
in national law. Article 12(2) thus provides that the right to leave any country including ones
own, and to return to ones own country, may only be subject to restrictions provided for by law
for the protection of national security, law and order, public health or morality. However,
everyone has the right to free association provided that he abides by the law (art. 10), without
there being any indication as to the grounds the national law can legitimately invoke to limit that
freedom of association.

1.5 Derogations from legal obligations

Unlike the International Covenant on Civil and Political Rights and the American and European
Conventions on Human Rights, the African Charter does not provide for any right of derogation
for the States parties in public emergencies.
This absence has been interpreted by the African Commission on Human and Peoples Rights to
mean that derogations are not permissible under the African Charter.4

The African Charter on Human and Peoples Rights


is specific in that it protects not only rights of individual
human beings but also rights of peoples.
The Charter also emphasizes the individuals duties
towards certain groups and other individuals.
While some provisions of the African Charter allow for limitations to be
imposed on the exercise of the rights guaranteed, no derogations are ever
allowed from the obligations incurred under this treaty.

1.6 The implementation mechanism

The African Commission on Human and Peoples Rights consists of eleven members serving in
their individual capacity (art. 31). It has the twofold function, first, of promoting human and

4
ACHPR, Commission Nationale des Droits de lHomme et des Liberts v. Chad, No, 74/92, decision taken at
the 18th ordinary session, October,
1995, para. 21; for the text see the following web site: http://www1.umn.edu/humanrts/africa/comcases/74-92.html.
peoples rights, and, second, of protecting these rights (art. 30), including the right to receive
communications both from States and from other sources.
As to the function of promoting human and peoples rights, the Commission shall, in the first
place, in particular, collect documents, undertake studies and researches on African problems,
organize conferences, encourage domestic human rights institutions, and, should the case arise,
give its views or make recommendations to Governments; second, it shall formulate and lay
down principles and rules aimed at solving legal problems relating to human and peoples
rights; lastly, it shall cooperate with other African and international institutions concerned with
the promotion and protection of these rights (art. 45(1)).
With regard to the Commissions function of ensuring the protection of human and peoples
rights under conditions laid down by the ... Charter (art. 45(2)), the Commission not only has
competence to receive communications from States and other sources, but is also authorized to
interpret all the provisions of the ... Charter at the request of a State Party, an institution of the
OAU or an African Organization recognized by the OAU (art. 45(3)).

Inter-State communications:
If a State party has good reasons to believe that another State Party to this Charter has violated
the provisions thereof, it may draw, by written communication, the attention of that State to the
matter (art. 47).
The State to which the communication is addressed has three months from the receipt of the
communication to submit a written explanation. If the matter has not been settled to the
satisfaction of the two States involved through bilateral negotiation or by any other peaceful
procedure, either State can bring it to the attention of the Commission (art. 48).
Notwithstanding these provisions, a State party can refer the matter directly to the Commission
(art. 49). However, the Commission can only deal with the matter after all domestic remedies
have been exhausted in the case, unless ... the procedure of achieving these remedies would be
unduly prolonged (art. 50). The States concerned may be represented before the Commission
and submit written and oral statements (art. 51(2)). When in possession of all necessary
information and after having tried all appropriate means to reach an amicable solution based on
the respect of Human and Peoples
Rights, the Commission shall prepare a report stating the facts and its findings, which shall be
sent to the States concerned and to the Assembly of Heads of State and Government (art. 52). In
transmitting its report, the Commission may make to the aforesaid Assembly such
recommendations as it deems useful (art. 53).

Communications from sources other than those of States parties:


The Charter does not specify whether the Commission is competent to deal with individual
complaints, as such, but merely provides that, before each session of the Commission, its
Secretary shall make a list of the communications other than those of States Parties ... and
transmit them to the members of the Commission, who shall indicate which communication
should be considered by the Commission (art. 55(1)). However, certain criteria have to be
fulfilled before the Commission can consider the case. Thus: (1) the communication must
indicate the author; (2) it must be compatible both with the Charter of the OAU and with the
African Charter on Human and Peoples Rights; (3) it must not be written in disparaging or
insulting language; (4) it must not be based exclusively on news disseminated through the
mass media; (5) it must be submitted only after all domestic remedies have been exhausted,
unless it is obvious that this procedure is unduly prolonged; (6) it must be submitted within a
reasonable period from the time local remedies are exhausted; and, finally (7) the
communications must not deal with cases which have been settled by these States involved in
accordance with the principles of the Charter of the United Nations, the Charter of the OAU or
the African Charter on Human and Peoples Rights (art. 56). There is no specific provision in the
Charter allowing individuals or groups of individuals to appear in person before the Commission.
Before a substantive consideration is made of a communication, it must be brought to the
attention of the State concerned (art. 57). Subsequently, when it appears after deliberations of
the Commission that one or more communications apparently relate to special cases which reveal
the existence of a series of serious or massive violations of human and peoples rights, the
Commission shall draw the attention of the Assembly of Heads of State and Government to these
special cases; the latter may then request the Commission to undertake an in-depth study of
these cases and make a factual report, accompanied by its findings and recommendations (art.
58(1) and (2)). Lastly, the Charter provides a procedure for emergency cases which shall be
submitted by the Commission to the Chairman of the Assembly, who may request an in-depth
study (art. 58(3)).

Periodic reports:
The States parties to the Charter also undertake to submit, every two years, a report on the
legislative or other measures taken with a view to giving effect to the terms of the Charter (art.
62). Although the Charter provides no explicit procedure for the examination of these periodic
reports, the African Commission on Human and Peoples Rights has proceeded to examine these
reports in public sessions. 5

The African Commission on Human and Peoples Rights is,


In particular, competent to:
_ promote human rights by collecting documents,
undertaking studies,disseminating information,
making recommendations, formulating
rules and principles and cooperating with other
institutions;

5
See e.g. as to report of Ghana, The African Commission on Human and Peoples Rights Examination of State
Reports, 14th Session, December 1993: Ghana, to be found on the following web site:
http://www1.umn.edu/humanrts/achpr/sess14-complete.htm.
ensure the protection of human and peoples rights
by receiving
(a) inter-State communications;
(b) communications other than those of the
States parties; and (c) periodic reports from the
States parties.

Having posited that the Charter is to a given extent an instrument for the protection of Human
Rights In African as seen above, it remain to add that African Charter/ African Union are without
challenges militating against the realization of its dream of a free and happy continent with
maximum respect for Human Rights and equality of all person.

The challenges (To mention but few)

The Charter/AU is faced with many challenges with political, economic and social dimensions.
Meeting these challenges will require commitment at the highest levels of the organisation as
well as resources. This section highlights some of the key issues relating to the protection and
promotion of human rights.

Culture and African values


African cultures have rightfully being criticised for not respecting the rights of women, mostly
because of harmful practices which negate gender equality.
Many campaigns have been launched against these practices, which include female genital
mutilation/cutting, and early marriage. National laws and policies have been passed to combat
such practices and to end discrimination against women. At the continental level, the Womens
Rights Protocol and the ACRWC both aim to combat such practices. Yet these practices still
continue. Womens organisations themselves have accepted that traditional practices, which are
deeply rooted in society, cannot simply be legislated away; but they also realize that combating
such practices requires political will and commitment, dialogue within communities and with
traditional leaders, and civic and human rights education.
It would be equally wrong, therefore, to argue that culture has no place in the human rights
discourse. In this context, Africas struggle for liberation was also a struggle for its identity and
cultural heritage as well as respect for human rights because the goal of colonialism in Africa
was to undermine African cultures and the rights of the African people. To ensure the protection
of African cultures, the OAU adopted the African Cultural Charter in 1976. Today, Africa is
once again faced with having to defend its cultural heritage against the impacts of globalisation
and Western lifestyles on traditional modes of living and social mores. Paradoxically, for
cultures to survive the test of time, they must both interact with other cultures and change, and
yet maintain their own unique characteristics.
In 2006, the AU adopted the Charter for the Cultural Renaissance of Africa, recognising that the
birth of the African Union brought in a new African. This Charter (awaiting ratification)
complements the 1976 Cultural Charter. Consciousness encapsulated in the African
Renaissance, which will inform, inspire and allow Africans to search for and discover their true
African identity. The AU also adopted various instruments on culture such as the Nairobi and
Algiers Declarations.9 The Algiers Declaration reiterated that culture represents a set of ways
and means through which the peoples of Africa, individually and collectively, affirm their
identity, and protect and transmit such identity from generation to generation. The Declaration
reaffirmed the role of culture for sustainable development, continental integration and the
realisation of the African Renaissance with a view to building a united, peaceful and prosperous
Africa.
Therefore, the AU aspires to use culture as a vehicle for social and economic development in
order to meet the various challenges facing the continent such the HIV and AIDS pandemic,
malaria and tuberculosis; abject poverty; high rates of illiteracy; and conflicts and emerging
challenges such as climate change, the food crisis, the financial crisis, and the economic
meltdown. Although Africa is a continent of great diversity, its people are the common thread
that binds all Africa. Culture has been understood to be the foundation of society and
development, integrating the values, customs and characteristics of a people, and promoting
interaction and dialogue amongst people. Therefore, culture should serve the great cause of
holding the African people together and strengthening their unity in diversity: whether within
families, public life, communities or organisations. Culture should help Africa to make sense of
itself in order to assert its roots, reflect on its troubled past, and forge a better, safer and
prosperous way forward through a shared African Vision. Cultural policies and programmes
should provide the leaders and principal development actors with appropriate data and
instruments to assist in the promotion of peace in a sustainable and humane manner; to ensure
that African democracy does not become the hostage of tribalism or ethnic preferences; to
promote pluralism, ethnic/cultural diversity, tolerance and respect for human rights; to ensure
that the issues of development are couched in African rationality; to produce universal African
texts which reflect the genius of the African people; and promote indigenous know-how as a
basis for a truly African Cultural Renaissance.
The African Charter places emphasis on peoples rights because African culture is firmly
grounded in the age-old traditions of the supremacy of collectivism, sense of belonging to a
community, humanism and ubuntu.
Africas languages, history and traditions remain fundamental to the coexistence of its people.
In drafting the African Charter, it was vital to reflect respect for the universality of rights and
also take into account the cultural context pertaining in Africa.
Addressing the expert meeting convened in 1979 to develop the African Charter, the then
President of Senegal, Leopold Senghor, therefore noted the following:
As Africans we shall neither copy, nor strive for originality We could get inspirations from
our beautiful and positive traditions. Therefore, you must keep constantly in mind our values of
civilization and the real needs of Africa.
In explaining the exclusion of peoples rights, he further stated that
[w]e simply meant to show our attachment to economic, social and cultural rights, to
collective rights in general, rights which have a particular importance in our situation of a
developing country.

Vulnerable groups
It is generally believed that the groups made vulnerable by social exclusion and inequality are
best protected through the effective implementation of social, economic and cultural rights and
the right to development in addition to civil and political rights. Poverty and exclusion from
mainstream development policies and programmes result in vulnerability. The delivery of
affordable basic services remains a big problem, and this can be addressed through promoting
access by vulnerable groups to health, education, water, sanitation and shelter, amongst other
things. Vulnerable groups include children, the elderly, persons with disabilities, the youth,
orphans and other vulnerable children, persons living with HIV and AIDS, poor families, and
refugees and displaced persons. All of these vulnerable groups have been targeted by AU
Commission programmes.
As mentioned previously, the OAU/AU developed key legal and policy frameworks that embody
commitments made by African leaders to promote and protect the rights and welfare of
vulnerable groups, and thereby address their vulnerability and social exclusion. In addition to the
legal instruments already referred to, policy instruments adopted to augment the legal protection
framework include the following:
The Declaration and Plan of Action on Africa Fit for Children (2001)
The Call for Accelerated Action on the Implementation of the Plan of Action on Africa Fit for
Children (2007)
The Policy Framework and Plan of Action on Ageing (2003). In collaboration with the African
Commission, the AU Commission is elaborating a Protocol on the Rights of the Elderly. A
Steering Committee has been set up to prepare for the establishment of the Advisory Council for
the Elderly within two years
The Declaration and Plan of Action on the African Decade of Disabled
Persons (19992009)
The Plan of Action on the Education Decade (2008)
The Continental Policy Framework on Human Rights and Persons Living with HIV/AIDS
(2006), in addition to the declarations and plans of action adopted at two Special Summits of
Heads of State and Government such as the Abuja Declaration and Framework Plan of Action on
HIV/AIDS,
Tuberculosis, and Other Related Infectious Diseases (2001)
The Africa Health Strategy (2007) and the Africa Regional Nutrition
Strategy (2005-2015)
The Plan of Action on the Family (2005)
The EU-Africa Plan of Action to Combat Trafficking in Human Beings, especially Women and
Children (2007)
The Policy Framework on the Sustainable Development of Sport in Africa (2008)
The Social Policy Framework (2008), and
The Study on Social Protection Systems in Africa (conducted in 2008).

Gender equality
An earlier critique of the African Charter was the omission of womens rights in its provisions,
as it gave little or no direct attention to women as a group. This is despite the fact that women
brought issues on gender inequalities to the African agenda through their participation in
liberation struggles albeit within the limits of power relations and, thus, directed OAU and
AU attention to the position of women in society. As was stated earlier, the adoption and
ratification of the Womens Rights Protocol sought to address these omissions.

Another criticism levelled against the Charter is the emphasis given to cultural values. This
emphasis conveys an ambiguous message and, according to Khadija the African Charter [i]s
characterized by a dualism of norms regarding womens rights, a contradiction between
modernism and traditionalism as well as between universalism and regionalism The African
Charter has placed the rights of women in a legal coma.
This view is based on the fact that, in general, African cultures militate against women by
according them low status and through harmful traditional practices such as female genital
mutilation/cutting, despite many African constitutions providing for gender equality and non-
discrimination. In addition to the Womens Rights Protocol, the AU Commission has prioritized
activities to promote gender equality that include the adoption of commitments such as the
Solemn Declaration on Gender Equality in Africa, the Policy Framework and Plan of Action on
Sexual and Reproductive Health and Rights, and an AU Gender Policy. The Heads of State and
Government, through their adoption of the 2004 Ouagadougou Declaration on Employment and
Poverty Alleviation, expressed concern about the major challenges and obstacles to gender
equality as well as the low levels of womens representation in social, economic, and political
decision-making structures which still persist; the increasing feminisation of poverty, aggravated
by discrimination and unequal opportunities and treatment; and the underutilisation of the
entrepreneurial creativity and job creation potential of African women.
It should also be noted that most instruments adopted since 2003 make provision for gender
equality and womens participation. Some even provide expressly for the inclusion of women in
the AUs decision-making bodies. For example, the AU has achieved a 50:50 gender balance
with the appointment of five women and five men to its Commission.38 The first President of
the Pan-African Parliament is a woman, whilst the first Interim President of ECOSOCC was also
a woman.
The AU Commission also established a Women, Gender and Development Directorate in the
Office of the Chairperson to coordinate all its activities and programmes relating to gender, as
well as to ensure that gender is mainstreamed into all AU programmes and policies in
accordance with the Decision on Mainstreaming Gender and Womens Issues within the African
Union. There is also the AU Womens Committee, an advisory body to the AU Commission
Chairperson. Among its roles, the Committee works with governments and civil society to
monitor the implementation of the Womens Rights Protocol and the Solemn Declaration on
Gender Equality in Africa.
Despite commitments to gender equality, discrimination against women and the lack of effective
participation by women in decision-making continues. Among the examples are that women are
accorded low status in society; they suffer violence and abuse; the rate of maternal mortality
remains high; and poverty is increasingly feminised. This is attributed to various factors, such as
the deepseated discrimination in African societies, patriarchal attitudes and stereotypes about
womens role in society, and a limited number of womens organizations that make human rights
an express part of their mandate despite a human development approach enjoining us all to link
human rights and development.
Therefore, legal and policy commitments always need to be accompanied by measures to combat
societal discrimination to address gender inequalities and womens unequal access to education,
health and other social services. These measures would include combating harmful traditional
practices through increased awareness-raising activities and the active involvement of traditional
and community leaders; the economic empowerment of women; concrete actions and strategies
to end violence and abuse against women and girls; increased access to basic social services such
as education of the girl child; and increased access to sexual and reproductive health services and
rights. Much, therefore, needs to be done to accelerate action in order to achieve the Millennium
Development Goals, as they all directly and indirectly impact on womens lives.

Conclusion and recommendations

1. An inclusive approach to human rights

Notwithstanding some rights being regarded as enforceable and others not, the AU should avoid
their polarisation and ensure that all rights including social, economic and cultural rights are
protected and promoted. To avoid the usual polarisation between the latter rights and political
and civil rights, it is suggested that a human-rights-based approach to development be adopted.
Such an approach combines social, economic and cultural rights with civil and political rights,
and the building of a just, equitable social contract between State and citizen. A human-rights-
based approach will also assist in linking the human rights agenda to the broader development
agenda. The current discourse on human security and human rights is very relevant to the AU
agenda. A human rights approach would also require governments to develop clear plans of
action with targets, objectives and measures for achieving them, and to allocate substantial
resources to their achievement.
2. Improved Institutional and constitutional arrangements
3. Better coordination of mechanisms with a human rights remit
4. Coherent and comprehensive approach to the elaboration of standards and their
implementation
5. Implementation or enforcement mechanisms and processes

As noted above, the OAU/AU and regional organisations have adopted various legal and policy
instruments to promote and protect human rights. There has also been an increased realisation of
rights on the domestic level through the adoption of constitutions, laws and policies, and the
establishment of institutions such as parliaments, courts, human rights institutions,
ombudspersons, and certain civil society and non-governmental organisations. Although all these
instruments and mechanisms exist to promote and protect human rights, many lack resources and
political backing. In the absence of the political will and financial and logistical support to
operationalise the institutions with a human rights remit, they will be ineffective in their tasks.
Thus, the enforcement and implementation of obligations and commitments remain a challenge.
Thus, by signing and ratifying continental or international legal or human rights instruments,
member states incur legal obligations to implement the values and standards embodied in them at
domestic level. However, what is more important than the ratification process is making the
rights enshrined in those instruments a practical reality through their domestication and
implementation.6 The systems of incorporating such standards into domestic laws differ across
member states.7 Even if countries like Namibia do not need parliamentary involvement to
incorporate such instruments once ratified, it is preferable to give meaning to them by enacting
laws and adopting policies and plans of action. These need to be aligned with human rights
standards as well as with sustained financial backing so as to ensure their effective
implementation.
The enforceability of rights also depends on access to courts. Courts are often inaccessible to
ordinary people, who are also not necessarily familiar with the court system. The AU should,
therefore, also promote the establishment of alternative mechanisms such as national human
rights commissions and ombudspersons, who employ both formal and informal complaints
processes and are easily accessible to people. However, to be effective, these mechanisms have
to be independent, well resourced, and complemented by an independent judiciary and an active
legislature.
These numerous resolutions and decisions by AU bodies which have a huge potential to
contribute to the human rights protection system are not always well known across the continent,
and neither are the mechanisms for their enforcement/implementation. Therefore, there is a need

6
The APRM recognised the importance of domestication, given the differences that exist
between countries as regards ratification and domestication.
7
Some countries require parliamentary involvement, while others make it automatically
applicable, backed up by laws and policies.
for mass education and dissemination of information on the Constitutive Act, national
constitutions and laws, other human rights instruments, and their implementation mechanisms.
Indeed, the African Charter obligates states to create awareness of the rights enshrined in it.
People can only exercise their rights if they are aware of them and how to enforce them.
The current mechanisms for enforcement and implementation include reporting, fact-finding
missions, and advice and recommendations of implementation mechanisms. One of the AUs
roles is to ensure effective follow-up and monitoring, but it does not have a presence in member
states.
Consequently, member states have to although they are not always legally obliged to submit
reports to the AU. Nonetheless, this is not always complied with, the reports are delayed, or they
are not submitted frequently enough.

Focus on vulnerability and exclusion


It has been pointed out that vulnerability is caused by the exclusion and marginalization of
certain groups. Thus, strategies for addressing vulnerability and exclusion should include
integrated, multisectoral and multidisciplinary approaches.

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