40 years later, we must keep fighting for human rights in Africa

Continentally, it is the first legal instrument to pierce the veil of sovereignty that excluded any scrutiny of how independent African states treated the people within their jurisdiction. One of the drafters of the African Charter, The Gambian jurist Hassen Jallow thus remarked ‘the very notion of creating machinery for the promotion and protection of human rights was itself nothing less than revolutionary in a continent where and at a time when the African states were ultra-jealous of their national sovereignty even and brooked no interference in what they regarded as their internal affairs.’ At the global level, it contributed to the international corpus of human rights. It did so both by giving equal legal status to civil and political rights on the one hand and economic and social rights on the other hand and by enshrining the collective rights of peoples and the duties of individuals.  

Like other human rights treaties the main target of the African Charter is the state. The experience of the grievous human rights violations to which Africans in independent states have been subjected to before and since the adoption of the Charter, as is evident from ongoing atrocities, make it evident why the misuse and abuse of the authority of the state represents a major threat to rights.  The Charter thus imposes legal obligations on the state. 

However, for the African Charter the excesses of the state is only one (but never the only) source of threat to human rights and fundamental freedoms. As I observed in the opening statement for the 28th extra-ordinary session, the trinity of burdens militating against the rights and dignity of the peoples of Africa include, apart from the burden of authoritarian rule, the burden of history (of slavery, colonialism, and apartheid) and the burden of the unjust international power relationship. The African Charter is thus novel in its recognition of these structural sources of injustice. 

With respect to the burden of the legacies of the systematic and gross human rights violations of the past (slavery, colonialism, and apartheid), the African Charter expresses the undertaking of African States ‘to eliminate…neo-colonialism’ and articulates the collective rights of peoples, including the right to self-determination in its expansive form. Accordingly, following the approach to human rights advanced by, what Adom Getachew called ‘worldmakers’ in her landmark study Worldmaking after Empire: The Rise and Fall of Self-determination which includes the likes of Nnamdi Azikiwe, W.E.B. Du Bois, Kwame Nkrumah and Julius Nyerere, the African Charter expressed its recognition that ‘the reality and respect of peoples’ rights should necessarily guarantee human rights.’ In according such prime place of honour to peoples’ rights, the African Charter echoes Nkrumah’s argument, that peoples’ rights as embodiment of freedom from domination and external dependence enable ‘the establishment of a system of governance in which the masses of the people ‘might be able to find better means of achieving livelihood and asserting their rights to human life and happiness.’ 
In one of its landmark cases, SERAC v. Nigeria, the African Commission on Human and Peoples’ Rights, the human rights body established by the African Charter, thus remarked that the origin of some of the provisions of the African Charter, in the particular instance Article 21, is to be traced to ‘colonialism, during which the human and material resources of Africa were largely exploited for the benefit of outside powers, creating tragedy for Africans themselves, depriving them of their birth right and alienating them from the land.’ On how this experience affects people in present day Africa, the Commission stated that the ‘aftermath of colonial exploitation has left Africa’s precious resources and people still vulnerable to foreign misappropriation.’ 
In stating in the preamble that the peoples of Africa ‘are still struggling for their dignity and genuine independence,’ the African Charter is expressing its recognition of the adverse impact not only of the past but also the burden Africa bears from the unjust power structure of the international system. It thus affirmed that ‘it is henceforth essential to pay particular attention to development.’ These preambular statements and the substantive rights in the Charter expand the conception of injustice undermining the full enjoyment of human rights to encompass those dimensions of the international system that imped the rights of peoples to freely determine their economic and social development according to the policy they have freely chosen.   
Today as we mark the 40th year anniversary of the African Charter, there is nothing more than the COVID19 vaccine inequity that vividly illustrates how this skewed power architecture of the international system brings peoples in Africa, as in other parts of the developing world, to an existential crisis.  The third wave of COVID19 pandemic is gathering pace, with more devastating impact than previous waves. African countries are witnessing that their concerns – that the protection given to pharmaceutical companies under the TRIPs will prevent them from protecting the right to health of their citizens – is being born by events. Together with major European countries, pharmaceutical companies are blocking the temporary waiver of the application of patent protection to COVID19 vaccines. As Strive Masiyiwa, chief of AU’s vaccination acquisition task team pointed out, Africa’s inability to access the vaccine is ‘a product of the deliberate global architecture of unfairness.’   

Surely, 40 years after its adoption Africa is nowhere near achieving the promises of the African Charter. Indeed, that Africa finds itself in this position 40 years after the adoption of the African Charter is an indictment of its incredible lack of progress, stagnation, or even worse regression. The breadth and depth of the challenges facing the peoples of Africa today are clear testament that the African Charter remains, as much, if not more, important today as it was at the time of its adoption. 

Dr Dersso is the Chairperson of the African Commission on Human and People’s Rights.