Almost two decades after adoption of the African Charter on Human and Peoples' Rights, the record of adherence to its provisions across the continent is mixed. Some countries have made notable progress, but others show persistent serious violations of human rights.
The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998, and came into effect on 25 January 2005, creating the African Court on Human and Peoples' Rights currently based in Arusha, Tanzania.
African performance on human rights as spelt out in the Charter varies from one country to another. Some African countries have responded positively to the principles of human rights while others are yet to pick up on the same.
Article 1 of the charter states that ‘The Member States of the Organization of African Unity [now the African Union], parties to the present Charter shall recognize the rights, duties and freedom enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.’
Many African countries have ensured that this article is respected and followed to the latter. Every human being by law is entitled to certain fundamental human rights that should at no one time be compromised. The Kenyan constitution of 2010, for example, carries a much-enhanced Bill of Rights that provides for the rights and freedoms of all the citizens. These include the right to life, freedom of expression, worship, speech and movement. The Bill of Rights comprises Chapter Five of the constitution.
Article 2 of the Charter states that ‘ Every 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, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.’
It is sad to note that this is one article of the Charter that has greatly been violated by many African countries. The Democratic Republic of Congo is one of such countries. There are still reports of continued serious violations of the human rights of the pygmy/Batwa populations of the in the eastern districts, which include deprivation of the right to life, forced removals from their lands, total deprivation of basic means of livelihood and many other injustices.
Article 3 of the charter states that ‘Every individual is equal before the law and shall be entitled to equal protection of the law.’ While many countries in Africa such as South Africa and Ghana have this provision in their constitutions, the issue of applicability of this article remains debatable. Equality is still a factor that is yet to be embraced by many African states. The gap between the rich and the poor is very alarming. The poor always have a hard time accessing the legal system in most of these countries. Law is seen to be a tool for the ‘privileged’ and is mostly used for their own benefit. It has been used as a means to an end and the poor are thus left to fend for themselves with no equal protection by the law.
According to Article 5, every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
On April 26, 2012 Parliament of Uganda passed the Prohibition and Prevention of Torture Bill 2010. It was assented to by the President of the Republic of Uganda on 27 July and gazetted September on 18, 2012 and is now the Prevention and Prohibition of Torture Act, 2012. The new law defines and criminalizes torture, and provides for sanctions and compensation in case of the offence of torture. It also makes the use of information obtained through torture inadmissible in courts.
It should be noted that although Articles 24 and 44 of the Constitution of the Republic of Uganda guarantee freedom from torture, the existing laws did not make torture a criminal offence. The new law now makes it a duty for anyone to report all cases and intentions of torture – acts or omissions by which severe pain or suffering whether physical or mental is intentionally inflicted on a person. Some of the acts defined as torture include systematic beating, head banging, punching, kicking, striking with truncheons, rifle butts, jumping on the stomach, food deprivation or forcible feeding with spoiled food and electric shocks. We can now confidently state that the Uganda has fully domesticated the United Nations Convention against Torture (CAT) which Uganda ratified in 1987. Measures taken to investigate allegation of Torture include the normal investigative procedures as well as sensitization programs for deterrence.
Article 6 states that every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Zimbabwe has been reported to be one of the countries in Africa that has failed to observe the principles contained in this article. For instance, prisoners in that country are detained for excessive periods, up to six years, before trial in violation of the African Charter on Human and Peoples’ Rights. The police have arrested perceived opposition supporters and members of civil society without due cause and have only released them when they fail to prosecute. The army and central intelligence office have also arrested and detained individuals illegally. The army has refused to release civilians despite court orders. The police have routinely arrested and detained citizens at protest marches; Members of the government and the ruling party have made threats against members of the opposition. Under the Presidential Powers (Temporary Measures)(Amendment of the Criminal Procedure and Evidence Act) Regulations persons suspected of serious economic crimes can be detained without bail up to 21 days.
According to Article 7, every individual shall have the right to have his case heard. This comprises:
1. The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
2. The right to be presumed innocent until proved guilty by a competent court or tribunal;
3. The right to defense, including the right to be defended by counsel of his choice;
4. The right to be tried within a reasonable time by an impartial court or tribunal.
To this end, no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
In Sudan, special courts existed in Darfur under the state of emergency to try crimes against the state; there were three such courts, one in each Darfur state capital. Even though the Interim National Constitution and the law provide for an independent judiciary, the judiciary was largely subservient to the president or the security forces, particularly in cases of alleged crimes against the state. On occasion courts displayed a degree of independence; however, political interference with the courts was commonplace, and some high-ranking members of the judiciary also held positions in the Ministry of Interior or other ministries in the executive branch. The judiciary was inefficient and subject to corruption.
A group of lawyers complained to the chief of the judiciary in Khartoum that judges in el-Geneina, West Darfur, were continually absent from work, resulting in a backlog of court cases. A number of replacement judges were eventually sent from Khartoum. Courts in the South were generally very rudimentary, understaffed, and suffering from poorly trained personnel. Traditional courts have been formalized and integrated into the judicial system. The court system did not function in many areas due to lack of infrastructure, communications, funding, and an ineffective police force. The problems of justice in South Sudan still persist to date.
Article 8 of the charter guarantees Freedom of conscience as well as the profession and free practice of religion. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
Many African countries have adhered to this principle with the exception of few of them. Individuals are free to enjoy the freedom of worship, to choose who and where to worship without fear of discrimination .However in countries such as Nigeria and Sudan ,there have been unending tensions between the Muslims and Christians whereby the two groups have been unable to tolerate each other. The splitting of these countries in two different parts, namely the northern and southern, is pre-dominantly religion-based. The Central African Republic has been plunged in unending tensions between Christians and Muslims. War has broken out in this country as a result of this while the world and the rest of Africa watches with their mouths shut.
Finally, Article 17 of this charter states that:
1. Every individual shall have the right to education
2. Every individual may freely take part in the cultural life of his community.
The continued existence of child soldiers in many African countries is of great concern. Despite being signatories to the charter, some countries have been seen to breach the article. Children have been used as soldiers in many countries. Such children are unable to go to school and get an education like other children. They are also denied the privilege of taking part in the cultural activities of their countries. Such countries include, the Democratic Republic of Congo, Sudan, Burundi, Uganda and Sierra Leone.
In Zimbabwe for example, by 2000 adult literacy was estimated at 93%. However, the education system is still under pressure: Fees charged in both private and government schools are prohibitive, teachers in government and other public schools are underpaid, government control of the fees charged by private schools has limited the amount private schools can raise thereby compromising the quality of education. In addition to this, teachers have been threatened and harassed by ruling party militias especially in the rural areas. The dropout rate, especially for girls, between primary and secondary school is increasing every day.
In Sudan, the law provides for free basic education up to grade eight; however, students often have to pay school, uniform, and exam fees. In Darfur few children outside of cities have access to primary education. Lack of schools remains a serious problem in the South. Girls do not have equal access to education. Child abuse and abduction are widespread. Criminal kidnapping of children for ransom is often reported.
In conclusion, it can be noted that Africa has a long way to go in the practice and upholding of human rights. Governments should be made accountable to ensure that human rights are upheld in their respective governments.
* Eva Anambo Ongoche is a final year student of Armed Conflict and Peace Studies at the University of Nairobi.
The 7th ,8th and 9th combined reports to the Republic of Zimbabwe to the African Charter on Human and people's Rights.
Sudan 2010 Human Rights Report
Uganda's Torture Bill 2010
The Banjul Charter
The Constitution of Kenya 2010