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This material is reproduced with permission from the copyright holder. Please cite as (1999) 43 Journal of African Law 1

APPLICATION OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS BY DOMESTIC COURTS IN AFRICA

FRANS VILJOEN*

 

INTRODUCTION

The African Charter on Human and Peoples' Rights1 (hereinafter the "African Charter" or "Charter") was adopted by the Organisation of African Unity (OAU) Assembly of Heads of State and Government in 1981. It entered into force on 21 October, 1986, after a majority of OAU member states had ratified the Charter. At present, 52 of the 53 member states have become parties: the only non-ratifying state is Eritrea.

Article 1 of the African Charter sets out the basic obligation of states parties to "recognize" and to "adopt legislative and other measures to give effect" to the rights and freedoms in the Charter. To a large extent the judicial application of the Charter depends on the status that international rights norms enjoy in a local legal system. It is unlikely that judicial institutions will make findings based on the provisions of the African Charter if the Charter is not regarded as part of domestic law. In such instances, it is more likely that courts may look to the Charter for interpretative guidance, thereby providing for a non-legislative measure to "give effect" to the Charter. However, Article 7(1) of the African Charter guarantees the right of appeal to competent national organs to redress the violation of rights recognized "by conventions, laws, regulations and customs in force". This would suggest that states party to the Charter guarantee the right of individuals to bring cases on the basis of the Charter, even before local courts.

International law can be incorporated into local legal systems in one of two ways: by explicit reference, or through reception. Explicit reference entails the enactment by name, as part of domestic legislation, of an international agreement. Reception takes place if the provisions of an international agreement are reproduced in national legislation, or if national legislation is amended or repealed to conform to international norms, without explicit reference being made to the source of these norms.2

What follows is an attempt to gauge the extent to which the Charter has been applied by domestic African courts, and the significance of this. This contribution is not an attempt at a comprehensive survey of the application of the African Charter by all domestic courts around Africa, as the exposition is sometimes very brief and the relevant sources are generally quite inaccessible. Although discussion covers only 16 countries, it extends across sub-regional divides and includes the major legal systems of the continent.

 

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THE AFRICAN CHARTER IN 16 AFRICAN DOMESTIC JURISDICTIONS

Algeria

Commissioner Rezzag-Bara, from Algeria, noted that the African Charter has been incorporated into Algerian law, but that he knew of no cases that have come before the Algerian courts on basis of the Charter.3

Benin

Following the adoption of a democratic constitution in 1990,4 a Constitutional Court was established in Benin in 1991.5 In terms of the Constitution, treaties have "an authority superior to that of laws" once they are ratified.6

Soon after the Constitution entered into force, on 22 May, 1991, a trade union leader seized the Court.7 He claimed that legislation of 26 September, 1988 contravened Articles 17 and 22 of the Beninois Constitution, as well as Article 7(1) of the African Charter. In its very brief decision (of fewer than two typed pages), citing Articles 4(1) (a) to (c) of the African Charter, the Court found that the "Loi" conformed to the Constitution.

In a subsequent case, one Madame Bagri invoked the right to work-as guaranteed in both the Beninois Constitution and the African Charter8-before the Constitutional Court.9 The Court, remarking that the complaint related to the application of rules of the "Statuts de la Fonction Publique", found that the actions taken to dismiss Mme Bagri were not unconstitutional.

The first cases in which the Constitutional Court declared government action unconstitutional date from 1994 10 In one case a decree by the Minister of the Interior, Security and Territorial Administration had to be scrutinized for constitutional consistency.11 The decree declared that only one developmental association should be registered per administrative entity. Associations that had previously existed, and whose applications for registration had been refused, had to cease all activities and be liquidated.12 The Court observed that in making this decree, the Minister had encroached upon the domain reserved to the law in terms of the Beninois Constitution and Article 10 of the African Charter. 13 Article 10 of the Charter declares that "every individual shall have the right to free association provided that he abides by the law".

Commentators have speculated about the interpretation of the term "provided that he abides by the law". Some have criticized the Charter as draconian, regarding every legal response by a government as "law". Others have suggested that "law" should and could be interpreted restrictively, requiring an essential minimum moral content before government fiat is elevated to law. It is quite clear that the President of the Court, Elisabeth Pognon, and her five colleagues

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adopted the latter approach. The mere fact that a minister has issued a decree does not mean that the right to freely associate enshrined in Article 10 of the Charter becomes impossible to invoke. According to the Beninois Constitutional Court there is "a domain reserved to law" upon which an executive may not encroach. The implications of the decision should not be overstated. It was an executive law-making activity that came under scrutiny, not an ordinary law of a law-making body, such as parliament. The meaning of "law" in French constitutionalism must also be taken into account. The decision says that "loi" should be distinguished from an "arrête".

In another case decided by the Beninois Constitutional Court in 1994, the Court heard an application to have certain appointments to the Communications Authority declared unconstitutional. 14 Interfering to a very limited extent with the executive decree, the Court referred to the African Charter as an integral part of the Constitution of 11 December, 1990. 15 Article 10 of the African Charter was cited as an interpretative tool, providing confirmation of the freedom to associate set out in Article 25 of the Beninois Constitution.

In 1993 four cases were heard by the Constitutional Court. In none of these is reference made to the African Charter. One finding of partial inconsistency with the Constitution was handed down. By way of contrast, of the 14 cases adjudicated in 1994, seven contain some reference to the African Charter.16 Findings of unconstitutionality were made in six of these instances. From this one may not only deduce a tendency towards greater judicial activism, but also a clear commitment to the realization of regional human rights.

Botswana 17

The question of whether discrimination on the basis of sex was unconstitutional arose in the case Attorney-General of Botswana v. Unity Dow.18 The lower court relied on international human rights treaties ratified by Botswana to inform its conclusion that the omission of the word "sex" from the list of prohibited grounds for discrimination in the Botswana Constitution does not imply that discrimination on this basis is constitutionally tolerable. One of these treaties was the African Charter. In Article 2 the Charter guarantees the enjoyment of the rights recognized therein without distinction on the basis of, amongst other factors, gender. At the Court of Appeal, the appellant raised an objection against the lower court's reliance on these international instruments, which Amissah J.P., rejected. However, the international norms were applied not as "enforceable rights", but as "an aid to the construction of an enactment" such as a "difficult provision of the Constitution".19 In relation to the African Charter, AMISSAH, J.P., made the following observations:

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"Botswana is a signatory to this Charter. Indeed it would appear that Botswana is one of the credible prime movers behind the promotion and supervision of the Charter."20

The judge conceded that the Charter is not binding law "as legislation passed by its Parliament", but that domestic legislation should be interpreted so as not "to conflict with Botswana's obligations under the Charter".21

The facts of the case concerned the constitutionality of provisions in the Citizenship Act, 1982, under the terms of which children had to adopt the nationality of their fathers. This meant that if a female Botswana citizen married a non-Botswana citizen, their children would not have Botswana nationality. It was assumed that women would "follow their husbands". 22 It was argued that this provision amounted to discrimination against women and was in conflict with Article 15 of the Botswana Constitution.23 However, the state contended that Article 15 was not applicable, as it did not refer to "sex" or "gender" as explicit grounds for non-discrimination. Basing itself on international law obligations of the state, including Article 2 of the African Charter, a majority of the Botswana Court of Appeal found a violation of the Botswana Constitution.24

As a direct consequence of this decision,25 the Botswana Parliament amended the Citizenship Act, so that the relevant section now provides that a person "shall be a citizen of Botswana . . . if, at the time of his birth, his father or mother was a citizen of Botswana". 26 The Court of Appeal continued its progressive improvement of women's rights when it declared unconstitutional regulations which forced female students to leave college on becoming pregnant. 27 This sequence of events stands as testimony to the undeniable effect of global and regional human rights norms in a domestic legal system.

Cape Verde

For all its incorporation of the Charter and the fact that it enjoys direct applicability in Cape Verde, 28 no cases invoking the Charter as such could be cited by commissioner Duarte Martins when questioned about the subject.29

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Congo

Commissioner Ondziel-Gnelenga, herself a lawyer appearing in cases in her home country, sketched the following bleak picture: "Personally, I have invoked, in some cases, certain provisions of the Charter, but this has only served as additional information to the cases in question. The judges and magistrates have not taken into account these provisions when making decisions or formulating opinions."30

Ghana

In an article published in 1991, a member of the African Commission, Professor Dankwa, a Ghanian, made a plea for the incorporation of international human rights treaties into domestic law in Ghana. 31 He lamented the fact that none of the nine international treaties ratified by Ghana had been made part of local law. This meant that the provisions of these instruments could not be asserted in Ghanaian courts. He proceeded to indicate the practical implications of one of these instruments, the African Charter. He argued that PNDC Law 4 (the Preventative Custody Law, 1982) and PNDC Law 91 (Habeas corpus (Amendment) Law, 1984) cannot stand in the face of Article 6 of the African Charter. 32 Furthermore, he expressed doubts whether PNDC Law 211 (the Newspaper Licensing Law) "can stand by virtue of the combined effect of Articles 9 and 7(1) of the same Charter".33 This decree provides that anyone intent on publishing a newspaper in Ghana must first obtain a licence, which maybe withdrawn at the discretion of the PNDC Secretary for Information. The legislation does not provide for either review of or appeal against this decision.

The Ghana Public Order Decree 1972 came under scrutiny in New Patriotic Party v. Inspector-General of Police, Accra. 34 The measures of this Decree included giving the Minister of the Interior the power to prohibit the holding of public meetings or processions for a specific period in a specified area, 35 and a requirement that any meeting to celebrate a traditional custom should be subject to prior permission.36 The Supreme Court of Ghana found section 7 to be in violation not only of the Ghanaian Constitution, 37 but also of the African Charter.38 ARCHER, CJ., added the following remarks to the leading judgment of HAYFRON-BENJAMIN, J: "Ghana is a signatory to this African Charter and Member States of the Organisation of African Unity and parties to the Charter are expected to recognize the rights, duties and freedoms enshrined in the charter and to undertake to adopt legislative and other measures to give effect to the rights and duties. I do not think the fact that Ghana has not passed specific legislation to give effect to the Charter, [means] the Charter cannot be relied upon. On the contrary, Article 21 of our Constitution has recognized the right

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to assembly mentioned in Article 11 of the African Charter."39 This does not necessarily form a pattern in judicial interpretation. In another decision handed down on the same day, New Patriotic Party v. Ghana Broadcasting Corporation, 40 pertaining to the right to information, no reference is made to the African Charter.41

Dankwa finds reason for optimism about the increased role of the Charter in the fact that a high-ranking government official, the attorney-general, referred to a provision of the Charter during a case. 42

Malawi

Through a process of negotiations, a new constitution was adopted in Malawi in 1994, and signed into law by the president in 1995. Not long before this, under the previous constitutional dispensation, the rare occasion of the African Charter being invoked presented itself to the Malawi Supreme Court of Appeal. Malawi had already ratified the African Charter on 17 November 1989. 43

In this case, Chafukzva Chichana v. The Republic, the appellant was sentenced after a conviction for the importation and possession of seditious materials.44 It was argued that certain of the appellant's fundamental rights, enshrined in the Universal Declaration, had been violated by the State. The Court agreed, holding that the content of the Universal Declaration had been incorporated into Malawi law by virtue of the 1966 Constitution.45

Counsel for the applicant further argued that the applicant's rights were also protected under the African Charter, to which Malawi was a party. Based on the fact that no specific legislation had been passed to incorporate the Charter into domestic law, BANDA, CJ., rejected this contention: "This Charter, in our view, must be placed on a different plane from the UN Universal Declaration of Human Rights. Whereas the latter is part of the law of Malawi the African Charter is not. Malawi may well be a signatory to the Charter but until Malawi takes legislative measures to adopt it, the Charter is not part of the municipal law of Malawi and we doubt whether in the absence of any local statute incorporating its provisions the Charter would be enforceable in our Courts."46

Professor Tiyanjana Maluwa agrees with this conclusion. He points out that the Court did not address the relevance of international law in protecting and

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interpreting human rights domestically in any depth. He suggests a different line of argument, based not on the constitutional incorporation of the Universal Declaration into Malawi law, but on it having become binding customary international law. Insofar as the rights in the African Charter resemble the Universal Declaration (as binding customary international law), they may be applied by municipal courts. As Maluwa concedes, this argument remains premised and dependent on the status of the Universal Declaration-not the African Charter.47 It appears as if a similar conclusion would have been reached under the provisions of the 1995 Constitution. 48

Namibia

Namibia ratified the Charter on 30 July, 1990, not long after its independence on 21 March, 1990. In a subsequent case, Kauesa v. Minister of Home Affairs,49 the Namibian High Court referred to various articles of the African Charter.50 Quoting Articles 14351 and 14452 of the Namibian Constitution, the Court made the following general statement: "The Namibian government has, as far as can be established, formally recognized the African Charter in accordance with Article 143 read with Article 63(2)(d) of the Namibian Constitution. The provisions of the Charter have therefore become binding on Namibia and form part of the law of Namibia in accordance with Article 143, read with Article 144 of the Namibian Constitution."53 On this basis the Court rejected arguments that certain hate-speech provisions and a regulation criminalizing unfavourable comment about the armed forces were unconstitutional. 54

Nigeria

It is ironic, but perhaps predictable, that the clearest illustration of the potential effect of the African Charter in domestic law is found in Nigeria under a military regime at a time of severe repression,55 especially following the nullification of the results of the elections held on 12 June, 1993.56 This is a clear example of incorporation of the Charter by explicit reference.

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Nigeria ratified the African Charter on 22 June, 1983. It subsequently incorporated its content into domestic law by way of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Decree, which now forms Chapter 10 of Volume 1 of the Laws of the Federation of Nigeria. Another legal regime—Chapter 4 of the 1979 Constitution, as amended-—also protects human rights in Nigeria. In some of the cases to be discussed, the operation of the Chapter 4 rights has explicitly been suspended. However, the operation of Charter rights had never been suspended, leaving the door open for the application of the Charter by judges.57

During the previous military regime some judges took tentative steps to ameliorate the eroding impact of military rule on fundamental rights. Eleven youths were convicted and sentenced to death by an "armed robbery tribunal" in 1988. The fundamental issue to be decided by LODGE, J., in Garba v. Lagos State Attorney-General58 was whether the jurisdiction of the High Court of Lagos State was ousted by section 10(3) of the Robbery and Firearms (Special Provisions) Decree 5 of 1984, which reads as follows: "The question whether any provision of Chapter VI of the Constitution of the Federal Republic of Nigeria 1979 has been, is being or would be contravened by anything done in pursuance of this Decree shall not be inquired into in . . . any Court of Law." As the applicants relied on the right to life contained in that chapter of the Constitution, the respondent argued that the Court lacked jurisdiction to hear the matter. In deciding that it had jurisdiction, the Court referred to the African Charter: "The African Charter on Human and Peoples' Rights, of which Nigeria is a signatory, is now made into our law by the African Charter Act, 1983, cited by the-learned counsel for the applicants. Even if its aspect in our Constitution is suspended or ousted by any provision of our local law, the international aspect of it cannot unilaterally be abrogated."

This approach was not adopted consistently by all Nigerian judges. In Wanab Akanmu v. Attorney-General of Lagos State59 the Court rejected the applicants' request for an order restraining the government from carrying out their execution pending the determination of a communication directed to the African Commission. In this instance, the Court held that Decree 5, quoted in the preceding paragraph, precluded it from considering the application. The Court rejected the contention that the African Charter was part of and enforceable in Nigerian law, remarking as follows:

"As for the African Charter on Human Right (sic), this cannot override the Laws of the Land ... The applicants are Nigerians residing in Nigeria. They were charged in Nigeria for Armed Robbery and were convicted and sentenced to death by a Competent Tribunal on the Law of the Land. "60

In 1993 the following facts came before the High Court of Lagos State in The Registered Trustees of the Constitutional Rights Project v. President of X-geria.61 Six persons

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had been convicted and sentenced to death by a "Disturbance Tribunal", which was set up pursuant to the Civil Disturbances (Special Tribunal) Decree 2 of 1987. The state wanted to proceed with their execution. An application had at that stage already been lodged on their behalf with the Commission.62 In that application the contention was that the applicants had not received a fair trial, as required by the African Charter. The application before the domestic court was directed at restraining the government from carrying out the applicants' execution pending the final determination of the communication by the Commission. When the Commission finally decided the case (in October, 1994, at its 16th session), it found that Articles 7 and 26 of the Charter had been violated and recommended that the complainants should be freed.63 This must stand as one of the clearest examples of how the Charter (and the Commission) has materially affected the destiny of Africans, in that the death sentences have not been enforced.64

In the High Court of Lagos the respondents argued that the jurisdiction of the Court to hear the application was excluded by virtue of certain decrees. Section 8(1) of the Civil Disturbances (Special Tribunal) Decree 2 of 1987 provides: "The validity of any decision, sentence, judgment, conformation, direction, notice or order given or made as the case may be or any other thing whatsoever done under this Act shall not be inquired into in any court of law." To avoid any doubt, Decree 55 of 1992 was also invoked in their argument. Section 3(l) of that decree determines that no "civil proceedings shall lie or be instituted in any court or tribunal for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to this Decree by or on behalf of the Military Government." The respondent argued that the African Charter, by being incorporated into domestic law, lost its status as international law. The Court (per ONALAJA, J) held that the Human and Peoples' Rights (Ratification and Enforcement) Act65 is also a "decree" for the purposes of Decree 55 of 1992, but "it is a Decree with a difference being a Decree to enable effect to be given in the Federal Republic of Nigeria to the African Charter".66

Since the government is still a member of the OAU, Chapter 10 of the federal laws is binding on the government. Assuming that the Human and Peoples' Rights (Ratification and Enforcement) Act is an ordinary decree, the Court is presented with a conflict between it and the ouster clauses. With reference to existing case-law, the Court applied the principle that international law obligations "prevail over the rules of domestic law when they are incompatible with the latter".67 In the light thereof, the Court found that its jurisdiction was preserved by the African Charter, as provisions of the Charter override the ouster clauses.

The judge introduced his judgment with a statement on the significance of the decision:

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"This is a case of great constitutional landmark and significance not only for Nigeria but also for member states of OAU as it touches the interpretation of African Charter due to paucity of cases that involved the said charter. This case opens a novel point with its uniqueness in the approach for the enforcement of the African Charter . . . with the guide to the courts of member states where there is conflict between the municipal or domestic law of the member state and the said charter . . 68.

This illustrates the leading role of the Nigerian judiciary in making the Charter guarantees effective.

In Akinnola v. General Babangida69 the same Court (per HUNPONU-WUSU, J.) went a step further. The applicant in this case sought an order declaring the Newspaper Decree 43 of 1993 to be in violation of the 1979 Nigerian Constitution and contrary to the African Charter. In terms of the Newspaper Decree newspapers had to comply with new registration guidelines. The applicant argued that these guidelines infringed the applicant's freedom of expression, as guaranteed in both the 1979 Constitution and the African Charter. Again the state party raised jurisdiction as a preliminary objection, arguing that enactments in the Constitution Suspension and Modification Act (similar to those in the Constitutional Rights Project case, above) ousted the jurisdiction of the courts. The Court relied on the judgment previously given by ONALAYA, J., extending it to apply to cases brought under the Nigerian Constitution and the African Charter in the domestic courts:

"Since the Courts have held that the African Charter is like an enactment of the Federal Government like a decree, it follows that if there is a conflict between an enactment ousting the jurisdiction of the Court and another which does not, the Court should lean more on the one that preserves the jurisdiction of the Court."

The judge also referred to the proceedings of the judicial Colloquium held in Bangalore in 1988, in which HELFEN, CJ., of Pakistan said: "The international human rights norms are in fact part of the constitutional expression of liberties guaranteed at the national level. The domestic Courts can assume the task of expanding these liberties."

Counsel for the state in Nemi v. The State 70 argued that there was a lacuna in Nigerian law for the enforcement of the rights in the Charter. A particular enforcement procedure was enacted in the 1979 Constitution71 to provide for a process of enforcing fundamental rights guaranteed in that Constitution. Similar provision was not made in the African Charter or the Ratification and Enforcement Act. Rejecting this argument, BELLO, CJ., continued: "Since the Charter has become part of our domestic law, the enforcement of its provisions like all our other laws falls within the judicial powers of the courts as provided by the Constitution and all other laws relating thereto."72

Another case in which reference was made to the African Charter was Agbakoba v. Director State Security Services.73 In this case, the passport of the applicant was impounded by a state security official without any reasons being given. The High Court held that a passport was the property of the government and could be withdrawn at any time. Allowing an appeal against the judgment, the Court of Appeal found that the seizure of the passport constituted a violation of the

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right to freedom of movement. The Court observed that the right (particularly the right not to be refused entry to or exit from one's country) was recognized in the African Charter.

The government was found to have violated the Constitution in two cases dealing with the occupation and closure of newspaper premises.74 Although the findings were not based on the African Charter, both applications made reference to the violation of rights protected in the Charter.

The Court of Appeal affirmed the status of the Charter as superior to that of ordinary legislation in Fawehinmi v. Abacha.75 In this case, the appellant was arrested without a warrant and detained by members of the state security services. He sought relief on the basis that his rights guaranteed in both the 1979 Constitution and under Chapter 10 (incorporating the African Charter) had been violated. The state argued that the members of the state security forces had been granted immunity and that the jurisdiction of the courts had been ousted in terms of various military decrees. The Court of Appeal found that the provisions of the African Charter, as incorporated into Chapter 10, are superior to national legislation. Its reasoning went as follows:

"Cap. 10 of the Laws of the federation are provisions in a class of their own. While the Decrees of the federal Military Government may over-ride other municipal laws, they cannot oust the jurisdiction of the court whenever properly called upon to do so in relation to matters pertaining to human rights under the African Charter. They are protected by the International Law and the Federal Military Government in not legally permitted to legislate out of its obligations."76

Despite this finding, the Court concluded that the trial court was correct in declining jurisdiction, because the appellant had adopted the wrong procedural route.77

Commissioner Umozurike, when interviewed about the domestic invocation of the Charter, referred to the "latest case Fawehinmi v. Attorney-General" in which it was held "in an important ratio decidendi that the African Charter has priority over any decree by government and cannot be excluded from application by decree" .78 Despite the importance of this finding, it has not served to benefit the individual who sought relief.

Senegal

When questioned about the Charter's domestic application in Senegal, the present Chairperson of the Commission, Commissioner Ndiaye, referred in vague terms to "a decision stating that the African Charter and international treaties have direct applicability in the courts of Senegal".79

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South Africa

In the second judgment delivered by the South African Constitutional Court, capital punishment was declared unconstitutional.80 CHASKALSON, P., made footnoted reference to the African Charter in his leading judgment, emphasizing that it prohibits the arbitrary deprivation of life.81 O'REGAN, J., referred to the same provision of the Charter, contrasting it with the open-ended formulation of the interim Constitution, which protected life as such.82

LANGA, J., went a step further in S. v. Williams when he delivered the Court's judgment declaring juvenile whipping unconstitutional.83 Article 5 of the African Charter helped him substantiate the assertion that section 11(2) of the interim Constitution corresponds with most international human rights instruments.84 However, the judge seemed to have gone beyond referring to the Charter as an interpretative tool when he mentioned that Mozambique had abolished corporal punishment in 1989 "in accordance with the country's obligations under the African Charter".85

A critical issue to be decided in Ferreira v. Levin NO86 was how the right to freedom in the interim Constitution had to be interpreted.87 Relying on, amongst others, the philosophers Berlin and Kant, as well as Canadian, American and German case-law, ACKERMANN, J., opted for a broad interpretation of the right. CHASKALSON, P., with whom the majority agreed, adopted a narrow interpretation. Support for an interpretation limiting "freedom and security of the person" to a context relating to detention or other physical constraints was found in public international law, including the African Charter.88 In another case, involving possession of indecent material, MOKGORO, J., found the African Charter clear in its provision for the right to receive information prior to transmitting it.89

A judge of the former Supreme Court, MCLAREN, J., in dealing with the interpretation of the right to dignity in the interim Constitution, 90 referred to a text book which makes reference in this context to the African Charter. 91

The relatively minimal impact of the African Charter may be explained by the fact that South Africa was a non-state party until July 1996 when it acceded to the African Charter.92 This event did not enjoy extensive media coverage and was not preceded by discussions in legal circles. Very few South Africans would have realized that the move had taken place. Another reason for the lack of

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reliance on the Charter by courts and litigants is the inferior status of international law under both the interim and final Constitutions.93

The minimal impact of the African Charter in South Africa since South African ratification remains disappointing. This is particularly striking in the Certification of the Constitution of the Republic of South Africa case,94 where regular reference is made to other constitutions and international instruments. The African Charter is mentioned twice-once as part of some background on developments in international human rights,95 and once to support the proposition that a right to intellectual property is rarely recognized in regional human rights conventions.96

In other cases, extensive reference to international law is contrasted with silence about the African Charter, its provisions and potential scope and application.97 The Charter may have been an interpretative tool, or more, in at least some of these decisions.

Tanzania

From a perusal of a recent book about human rights in Tanzania, Chris Maina Peter's Human Rights in Tanzania: Selected Cases and Materials,98 it would appear that the African Charter had not featured in any way before Tanzanian courts. However, the following two cases deserve mention.

Equality of the sexes was the issue in Ephrahim v. Postage 99 a decision of the Tanzanian High Court. A woman inherited clan land from her father. In her old age, she decided to sell the land, and the willing buyer happened to be someone not belonging to the clan. A male clan member filed a suit to declare the sale void, as females do not have the power to sell clan land. The relevant codification of customary law (of the Haya group) indeed provides that clan land shall not be sold by female members of the clan. In terms of an amendment to the Tanzanian Constitution, a Bill of Rights was introduced,100 under which a court must construe existing law "as may be necessary to bring it into conformity with" the provisions of the Bill of Rights.101 Article 13(4) of the Bill of Rights prohibits discrimination against women. In interpreting Article 13(4), the Court referred to similar provisions in the Universal Declaration of Human Rights and the CPR, and to the fact that Tanzania had ratified the Convention on the Elimination of All Forms of Discrimination against Women. MWALUSANYA, J., continued:

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"That is not all. Tanzania has also ratified the African Charter on Human and Peoples' Rights which in Article 18(3) prohibits discrimination based on account of sex . . . The principles enunciated in the above-named documents are a standard below which any civilized nation will be ashamed to fall. It is clear . . . that the customary law under discussion flies in the face of our Bill of Rights as well as the international conventions to which we are signatories. 102

As a result, he found the Haya customary rule to be inconsistent with the Bill of Rights and ordered that the Constitution should prevail.103

In DPP v. Pete 104 the highest Tanzanian Court, the Court of Appeal, heard an appeal against a judgment of MWALUSANYA, J.105 Sub-sections 148(4) and 148(5) of the Criminal Procedure Act 1985 were declared unconstitutional by him in the lower court. The first provided that bail had to be denied if the Director of Public Prosecutions issued a certificate to the effect that the release of a detained person would be prejudicial to the safety of the Republic. The second made it impossible for courts to grant bail in respect of certain categories of offences, including offences involving possession of a firearm. In the course of interpreting the Bill of Rights, the Court found support for its interpretation in the African Charter:

"Tanzania signed the Charter on 31 May, 1982 and ratified it on 18 February, 1984. Since our Bill of Rights and Duties was introduced into the Constitution under the Fifth Amendment in February 1985, that is, slightly over three years after Tanzania signed the Charter, and about a year after ratification, account must be taken of the Charter in interpreting our Bill of Rights and Duties.106

The court referred to the Preamble of the Charter and concluded: "-It seems evident in our view that the Bill of Rights and Duties embodied in our Constitution is consistent with the concepts underlying the African Charter on Human and Peoples' Rights as stated in the Preamble to the Charter." 107 The Court consequently affirmed the decision of the lower court, holding that provisions of the Criminal Procedure Act violated the individual's right to personal freedom. 106

Togo

According to Commissioner Amega, the provisions of the Togolese Constitution correspond with the provisions of the Charter. He was not aware of any cases in which the Charter had been invoked by the Togolese courts. 109

Tunisia

Interviewed in 1996, Commissioner Ben Salem could not refer to any cases in which courts in Tunisia had relied on or referred to the Charter.110

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Zambia

Counsel in Longzve v. Intercontinental Hotel111. referred to international human rights documents, including the African Charter. The Zambian High Court (per MUSUMALI, J.) made some remarks about the effect of international treaties ratified by Zambia:

"It is my considered view that ratification of such documents by a nation state without reservations is a clear testimony to the willingness by that state to be bound by the provisions of such a document. Since there is that willingness, if an issue comes before this Court which would not be covered by local legislation but would be covered by such international document, I would take judicial notice of that treaty or convention in my resolution of the dispute."112

The African Charter was cited explicitly as a treaty with such effect.113

Zimbabwe

Zimbabwe ratified the Charter on 30 May, 1986. One finds scant reference to it in the relatively extensive human rights jurisprudence that has burgeoned in the subsequent ten years. In two cases dealing with corporal punishment, extensive reliance was placed on international authority.114 While the European Convention was quoted and numerous cases decided by the European Commission and Court were referred to, there is not a single reference to the African Charter in these two cases.

The African Charter was quoted as one of a number of international instruments that contain a right to freedom of movement and travel, supporting the High Court's judgment in Chirwa v. Registrar-General.115 In a case concerning the refusal of a licence to operate a mobile cellular telephone service, the Supreme Court ruled that such a refusal violated the applicant's freedom of expression.116 This was guaranteed as a right in the Zimbabwean Constitution-an indispensable condition for a free and democratic society, the court held, referring to its inclusion in a number of international human rights instruments. One of these references is to Article 9 of the African Charter.117

CONCLUSION

The first observation is an obvious one: the extent to which the African Charter has been invoked in a particular country correlates with the status that the Charter (as part of international law) enjoys in that domestic legal system.

Clearly, the above list is not exhaustive of all judicial reliance on or interpretation of the African Charter by courts on the continent. But the survey strongly suggests that the cases in which the Charter was mentioned in domestic courts are few. The survey may not be comprehensive, but it provides as complete a picture as could be assembled. Further research should be undertaken to draw

[End of page 15]

a more complete outline, but will remain hampered by the inaccessibility of sources. The workshops preceding the sessions of the African Commission, organized by the International Commission of jurists, may serve as a forum where NGOs with observer status with the African Commission could pool information about recent judicial developments.

When the Charter could not be invoked as an enforceable right, it was sometimes used as an interpretative guide. However, in many cases, this was not done. Particularly in the corporal punishment cases decided by Southern African courts (Namibia, South Africa and Zimbabwe), the European rather than the African system was referred to. One obvious explanation for this preference is the fact that the abstract norm of "cruel, inhuman and degrading punishment" had been given concrete content in the European jurisprudence.118 In one instance the African Charter had not been ratified when a case which could have referred to it was instituted or decided.119 Using the Charter as interpretative guide is the most likely first step in extending the sphere of influence of the Charter. In this respect the African Commission adopted a resolution at its 19th session, urging judges and magistrates in African states to "play a greater role in incorporating the Charter and future jurisprudence of the Commission" in their judgments.120

Another reason why African courts have not relied explicitly on the Charter, even as an interpretative guide, is that local courts primarily interpret and apply local law. In some instances, the provisions of the Charter have been incorporated into domestic law. If these systems overlap, judicial application of national law is simultaneously (albeit implicitly) also application of the Charter. Although this may not be stated explicitly, the Charter has been applied effectively under such circumstances.

There has been a growing awareness of the African Charter during the 1990s. This has in some instances followed the creation of new domestic institutions or the enforcement of constitutional rights, as exemplified by the case-law emanating from Benin. There is also some evidence of a cumulative or domino effect. Once a single case has been decided on the basis of the African Charter, others follow-as demonstrated in Nigeria.

In some instances one judge remained a lone voice for some time, showing what a difference it would have made if more followed his example. MWALUSANYA, J., of the Tanzanian High Court epitomizes the singular resolve of one judge to convert the guarantees of the Bill of Rights into reality.

The interrelationship between the domestic institutions and the Commission has to be kept in mind. If a domestic court can interpret and apply the Charter, the Charter itself is part of the domestic remedies to be exhausted. In such instances, the Commission acts as a "court of appeal" against the decision by the domestic court. But if the domestic courts do not have that competence, the Commission must provide an initial decision based on the African Charter. In time, it should be instructive to note the degree of difference or correlation in

[End of page 16]

application and interpretation of the Charter by national courts, the African Commission and the proposed African Court on Human and Peoples' Rights. 121

The frequency and innovative use of the Charter by the local judiciary is closely linked to the arguments forwarded by legal counsel.112 For this reason, it is not only judges but lawyers more generally who should be exposed to training programmes about the Charter. In this, NGOs and law societies in the different countries will have an active role to play.123

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_____________________________________________________________________

* Lecturer of Law, University of Pretoria, South Africa; MA LL.B (Pretoria), LL.M (Cantab), LL.D (Pretoria).

1 OAU Doc. CAB/Leg/67/3/Rev.5, reprinted in (1981) 21 ILM 58.

2 See F. M. Volkov et al (eds.), International Law, Moscow, 1990, 54.

3 Interview in (1996) Oct-Dec African Legal Aid Quarterly 45.

4 The Constitution of 11 December, 1990.

5 Pursuant to Loi 91-009 of 4 March, 1991, "Loi Organique sur la Cour Constitutionnelle".

6 Art. 147 of the 1991 Constitution.

7 Decision 002/ of 26 June, 1991.

8 Specifically art. 13(2), which guarantees equal access to the public service.

9 Decision DDC 03-93.

10 Based on a personal perusal of the Court's records in Cotonou, Benin, during April 1995.

11 Decision DCC 16-94 of 27 May, 1994.

12 Decree 260/MISAT/DC/DAI/SAAP of 22 November, 1993.

13 The minister "a empiété sur le domain reservé a la loi par articles 25 et 98 de la Constitution et 10 de la Charte Africaine des Droits de 1'Homme et des Peuples".

14 Decision DCC 10-94 of 9 May, 1994.

15 "Partie intègrante".

16 Cases DDC 05-94 (art. 13(2) of the African Charter), DDC 06-95 (art. 13(2)), DDC 09- (art. 13(2)), DDC 10-94 (art. 10), DDC 11-94 (art. 7), DDC 16-94 (art. 10) and DDC 18-94 (art. 13(2)). Based on a perusal of records in the Constitutional Court Library, Cotounou, Benin, during 1995.

17 See in general the discussion by L. Lindholt, Questioning the Universality of Human Rights: The African Charter on Human and Peoples' Rights in Botswana, Malawi and Mozambique, Dartmouth, 1997, chs. 6 and 7.

18 [19921 LRC (Const.) 623.

19 Ibid.

20 At 656d-e.

21 At 656h-i.

22 On the investigation of the Botswana Law Reform Commission and its conclusions, see Lindholt, op. cit., n. 17, 199.

23 Art. 15(1) prohibits any law which is discriminatory "either in itself or in its effect".

24 Art. 2 of the Charter includes "sex" as one of the grounds on which the guarantees of the Charter may not be denied to any individual. The others are "race, ethnic group, language, religion, political or any other opinion, national and social origin, fortune, birth or other status". The list in the Botswana Constitution is restricted to "race, tribe, place of origin, political opinions, colour or creed" (art. 15(3)).

25 Although the amendment came several years after the Unity Dow judgment, it is clear from the memorandum accompanying the amendment that it was adopted in reaction to the judgment (Memorandum on Citizenship (Amendment) Bill No. 9 1995, which quotes the Dow case). See Lindholt, op. cit., n. 17, 200. For a background of pressure on the government, see also E. K. Quuansah, "Is the right to get pregnant a fundamental human right in Botswana?" (1995) 39 J.A.L. 102.

26 Emphasis added.

27 Student Representative Council, Molepolole College of Education v. Attorney General of Botswana, Civil Appeal 13 of 1994, [1995] 3 LRC 447. For a case discussion, see Quansah, op. cit., n. 25, 97. See also Lindholt, op. cit., n. 17, 209.

28 See art. 1 l(1) of the 1992 Constitution of Cape Verde: "International law shall be an integral part of the Cape Verde judicial system, as long as it is in force in the international legal system", as well as art. 11(4): International law "shall take precedence over all laws and regulations below the constitutional level".

29 Answer to a question during interview, see African Legal Aid Quarterly, op. cit., n. 3, 14.

30 Ibid., 34.

31 E. V. O. Dankwa, "Implementation of international human rights instruments: Ghana as an illustration", (1991) 3 ASICL Proc 57.

32 Ibid.

33 Ibid., 63.

34 [1993] 1 N.L.P.R. 73, suit 3/93, 30 November, 1993.

35 S. 7.

36 S. 8.

37 S. 21, which guarantees freedom of assembly including freedom to take part in processions and demonstrations.

38 S. 11, dealing with freedom of assembly.

39 At 82.

40 Writ 1 /93, Supreme Court, judgment of 30 November 1993, per ARCHER, CJ., FRANcois, J., SEKYI, J., AITKINS, J., WIREBU, J., BAMFORD-ADDO, J., and HAYFRON-BENJANfIN, J.

41 The Ghanaian Court referred to the fact that the Constitution demands that a broad and liberal spirit of a democratic and pluralist society should prevail in the country (p. 11 of typed judgment). Art. 21(1)(f) of their Constitution provides that all persons have the right to information, subject to such qualifications as are necessary in a democratic society. The Court chose to seek the spirit referred to in Ghana law, rather than in art. 9(1) or 9(2) of the Charter. Art. 9(l) of the Charter grants an unqualified right to receive information. Art. 9(2) has a claw-back clause: everyone may express their opinions "within the law". It is perhaps understandable that the Court did not seek to find the embodiment of a democratic and pluralist spirit in these two provisions of the Charter.

42 Observation made during interview, see African Legal Aid Quarterly, op. cit., n. 3, 11.

43 On the potential effects of the Charter on Malawi law, see Lindholt, op. cit., n. 17, chs. 6 and 7.

44 [1996] 1 LRC 1. Discussed by T. Maluwa, "The role of international law in the protection of human rights under the Malawi Constitution", (1995)3 A.TB.LL. 65-69.

45 The 1996 Constitution, then in force, provided in s. 2(1)(iii) that the "government and the people of Malawi shall continue to recognise the sanctity of the personal liberties enshrined in the United Nations' Universal Declaration of Human Rights . . . "

46 Cited by Maluwa, op. cit., n. 44, 68.

47 Ibid., 68-69.

48 See s. 211(1) of the 1994 Constitution.

49 [1995] 1 SA 51 (NmHC); [1994] 2 LRC 263 (Namibia, HC).

50 Noting that the provision for non-discrimination in the African Charter does not allow for any exception (at 861); 302 I).

51 "All existing international agreements binding on Namibia shall remain in force, unless and until the National Assembly, acting under Article 63(2)(d) hereof, otherwise decide".

52 "Unless otherwise provided by this Constitution or act of parliament, the general rules of public international law and international agreements binding on Namibia under this Constitution shall form part of the law of Namibia."

53 At 86 G-H; 303 d. In its decision reversing the court a quo's finding the Namibian Supreme Court did not make reference to the African Charter: Kauesa v. Minister of Home Affairs [1996] 4 SA 965 (NmSC).

54 S. 11(1)(b) of the Racial Discrimination Prohibition Amendment Act and Reg. 58(32) made in terms of the Police Act (RSA) 7, 1958.

55 This fact is also reflected in the proliferation of "non-official" human rights case reports, such as those in the Journal of Human Rights Law and Practice.

56 The Nigerian courts were also approached on bases other than the African Charter. In some judgments, judges showed a willingness to stand up to executive conduct, such as Akinsanya J., in Abiola v. National Electoral Commission (1993) 1 NPR 42, in which the High Court of Lagos State ruled that the previous president, Babangida, lacked the authority to annul the elections and instate an interim government.

57 See C. C. Nweze, "Human rights and sustainable development in the African Charter: a judicial prolegomenon to an integrative approach to Charter rights", (1997) 1 Able State University Law Journal 11-12.

58 Suit ID/599M/91, judgment of 31 October, 1991; see F. Falana, Application of Fundamental Rights in .Nigeria, 1994, 7 (unpublished paper presented at workshop on law, Legal Institutions and Human Rights in Nigeria, held in Lagos, Nigeria, 24-25 November, 1994).

59 Suit M/568/91, judgment of 31 January, 1992, High Court of Lagos State, unreported.

60 Quoted in A. Lester, "The Potential Relevance of the European Convention on Human Ri hts", in Developing Human Rights Jurisprudence, vol. 4 , London, 1992, 152.

61 Civil suit M/ 102/92, judgment of 5 May, 1992, unreported.

62 See Communication 87/93 (Constitutional Rights Project (in respect of Lekwot and six others) v. Nigeria)

63 See Communication 87/93 (Constitutional Rights Project (in respect of Lekwot and six others) v. Nigeria).

64 At its 17th session the Commission decided to bring the file to Nigeria for a planned mission "in order to make sure that the violations have been repaired". This mission took place 7-14 March, 1997, but the mission report has not been submitted yet (see 10th Annual Activity Report at paras. 21, 22).

65 Cap. 10 of the Laws of the Federation of Nigeria, 1990.

66 At 40 of the typed judgment.

67 At 44 of the typed judgment.

68 At 1 of the typed judgment.

69 Judgment reprinted in (1994) 4 Journal of Human Rights Law and Practice 250.

70 [1994] 1 LRC 376 (Nigeria, SC).

71 S. 42 of the 1979 Constitution.

72 At 385 c-d.

73 [1994] 6 NWLR 475; see also [1996] 1 C.H.R.D. 89.

74 Punch Nigeria Ltd v. Attorney-General (1996) 1 C.H.R.D. 46 and Concord Press of Migeria Ltd v. Attorney-General (1996) 1 C.H.R.D. 47.

75 (1996) 9 NWLR (Pt. 475) 710.

76 At 747, quoted by E. Ojukwa, "Is Fawehinmi v Abacha a correct decision?", (1997) 1 Legal Practice Notes: Human Rights Law 21.

77 For criticism of this finding, see ibid., n. 77.

78 Interview reported in African Legal Aid Quarterly, op. cit., n. 3, 47.

79 Ibid., 39

80 S. v. Makwanyane [1995] 3 SA 391 (CC).

81 At par. 36, n. 52

82 At par. 324, n. 221.

83 [1995] 3 SA 632 (CC).

84 At par. 21, n. 24.

85 At par. 40, n. 58

86 [1996] 1 SA 984 (CC).

87 S. 11(1).

88 At par. 170.

89 See Case v. Minister of Safety and Security [1996] 3 SA 617 (CC) at par. 29, n. 41, referring to art. 9 of the African Charter.

90 S. 10.

91 The text is A. Cachalia et al, Fundamental Rights in the New Constitution, Cape Town, 1994, 33-34. See also Polgieter v. Kilian [1996] 2 SA 276 (N) 314 D-E. See further the reference to the African Charter in Shabalala v. Attorney-General, Transvaal [1995] SA 608 (T), where CLOETE, J., declined to look at any foreign or international law (at 642 J).

92 See, for example, AZAPO v. President of RSA [1996] 4 SA 671 (CC), which dealt with a constitutional challenge to the amnesty provisions in the Promotion of National Unity and Reconciliation Act, 34 of 1995.

93 In terms of the interim Constitution (Act 200 of 1993), ratified international agreements formed part of the laws of South Africa "provided Parliament expressly so provides and such agreement is not inconsistent with (the) Constitution" (s. 231(3)). The final Constitution provides (Act 200 of 1996) that an international agreement becomes law "when it is enacted into law by national legislation" (s. 231(4)).

94 See, for example, [1996] 3 SACLR 17 (CC).

95 Par. 50, n. 46 of the judgment.

96 Par. 75, n. 67 of the judgment.

97 See, for example, Brink v. Kitshoff [1996] 1 SACLR 69 (CC), Dispute Concerning Constitutionality of Certain Provisions of Gauteng School Education Bill [1996] 2 SACLR 117 (CC) and AZAPO v. President of RSA, op. cit., n. 92.

98 Koln, 1997.

99 [1990] LRC (Const) 757.

100 By means of the Constitution (Consequential, Transitional and Temporal Provisions) Act (16 of 1984), which took effect in March, 1988.

101 S. 5(l) of Act 16 of 1984.

102 At 763 a-c.

103 At 770 c.

104 [1991] LRC (Const.) 553.

105 For a case comment, see S. Coldham, "Case notes (Ephrahim v. Pastory : DPP v. Pete)", [1991] 35 J.A.L. 205.

106 Per NYALALI, CJ., MAKAME and Ramadhani J J.A., 565 g.

107 At 566 b.

108 At 568 e-f. The violation could also not be "saved" under ss. 30 or 31 in the Bill of Rights, because the provision was too broad (at 572).

109 African Legal Aid Quarterly, op. cit., n.3, 42.

110 Ibid., 37.

111 [1993] 4 LRC (Const.) 221.

112 At 233 c-d.

113 At 233 c.

114 S. v. Acube [1988] 2 SA 702 (ZS) (see the reference also to US courts at e.g. 718) and S. v. A juvenile [1990] 4 SA 151 (ZS).

115 1993 (1) ZLR 1 (H).

116 Retrofit v. Telecommunications Corporation [ 1996] (1) SA 847 (ZS).

117 At 856 G-H.

118 See, for example, the remarks by GUBBAY, the present chief justice of Zimbabwe: "we have looked to precedential judicial decisions emanating from those jurisdictions whose reputation for human rights is highly regarded and, of course, the opinions of the European Court of Human Ri hts" ((1997) 19 HRQ 277 at 253).

119 This justifies the omission in the Namibian case Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State [1991] 3 SA 76 (Nm S).

120 Ninth Annual Activity Report Annex VII, 6.

121 See the "Protocol to the African Charter on human and peoples' rights establishing the African Court on human and peoples' rights", adopted unanimously by the OAU Assembly of Heads of State and Government on 9 June, 1998, reprinted in (1997) 9 R.A.D.I.C. 953.

122 See, for example, the remarks by ONALAJA J., in The Registered Trustees of the Constitutional Rights Project v. The President of Nigeria, above, n. 65, 46-47 of the typed judgment: "Let me put on record that the ingenuity in the quintessence manner and dexterity of the learned counsel for the applicant/ respondent has shed a new light and horizon on African Charter on Human and Peoples' Rights in African jurisprudence [sic]. It has reflected the law and lawyer in the words of Dean Roscoe Pound as social engineers."

123 See also the Commission's recommendation at its 19th session in which it urged bodies in civil society "to initiate specialised and comprehensive training for judicial officers, lawyers at national and sub-regional level" (Ninth Annual Activity Report Annex VII, 7).

[End of Document]

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