African Human Rights System
- Paragraph 1:
Every individual shall have the right to receive information.
- Paragraph 2:
Every individual shall have the right to express and disseminate his opinions within the law.
This article is sometimes deemed to include a “claw-back clause”: if its use of the term “law” is interpreted to mean any domestic law regardless of its effect, state parties to the charter would be able to negate the rights conferred upon individuals by the charter. The African Commission on Human and People’s Rights ruled that this provision constituted a reference to international law (not domestic), meaning that the only restrictions that can be enacted by the relevant national authorities are those consistent with state parties’ international obligations.
In its very important decision, the commission noted that when in its defense a state claims that it acted in accordance with previously laid down domestic law, such laws should not override constitutional or international human rights standards; they must be consistent with the state’s obligations under the charter: permitting state parties to construe charter provisions so that they could be limited or even negated by domestic laws would render the charter meaningless. According to Article 9 (2) of the charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express and disseminate one’s opinions; this would make the protection of the right to express one’s opinions ineffective. To allow national law to have precedence over the international law of the charter would defeat the purpose of the rights and freedoms enshrined in the charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the charter must be in conformity with the provisions of the charter.3 The commission has also underlined that states could only impose necessary restrictions to rights protected by constitutional or international human rights instruments and that no situation warranted the wholesale violation of human rights. (Communication 102/93 against Nigeria)
Place/Date of Conclusion: Nairobi, Kenya, 27 June1981
Entry into Force: 21 October 1986
Status: Parties: (53)
Legal Citation: African Charter on Human and Peoples’ Rights (Nairobi, Kenya, 27 June 1981), 21 I.L.M. 59 (1981), entered into force 21 Oct. 1986.
- In order to advance political, economic and social governance, State Parties shall commit themselves to: . . . (8) Promoting freedom of expression, in particular freedom of the press and fostering a professional media . . .
Place/Date of Conclusion: Addis Ababa, Ethiopia, 25 October 2011
Entry into Force: 15 February 2012
Status: Signatories: (38) Parties: (10)
Article 9: Right to Participation in Political and Decision-Making Process
- States Parties shall take specific positive action to promote participative governance and the equal participation of women in the political life of their countries through affirmative action, enabling national legislation and other measures . . .
Place/Date of Conclusion: Maputo, Mozambique 07 November 2003
Entry into Force: 25 November 2005
Status: Signatories: (51) Parties: (36)
Legal Citation: Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, CAB/LEG/66.6; 1 Afr. Hum. Rts. L.J. 40.
Article 66: The Press
- Member States agree to: (a) to maintain within their borders, and between one another, freedom of access for professionals of the communication industry and for information sources; (b) to facilitate exchange of information between their press organs; to promote and foster effective dissemination of information within the Community; (c) to ensure respect for the rights of journalists; (d) to take measures to encourage investment capital, both public and private, in the communication industries in Member States.
Place/Date of Conclusion: Lagos, Nigeria, 28 May1975
Entry into Force: 19 June 1975
Status: Parties: (15)
Legal Citation: Treaty of the Economic Community of West African States [Treaty of Lagos] (Lagos, 28 May 1975, 35 I.L.M. 660, entered into force 19 Jun. 1975.
Article 6: Fundamental Principles of the Community
- The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include: . . . (d) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protect ion of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights . . .
Article 7: Operational Principles of the Community
- Paragraph 2:
The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.
Place/Date of Conclusion: Arusha, Tanzania, 30 November 1999
Entry into Force: 07 July 2000
Status: Parties: (5)
Article 19: Information Availability
- Paragraph 1:
State Parties agree to co-operate in improving the free flow of information within the Region.
Article 20: Freedom of Media
- State Parties shall take necessary measures to ensure the development of media that are editorially independent and conscious of their obligations to the public and greater society.
Place/Date of Conclusion: Blantyre, Malawi, 14 August 2000
Status: Parties: (14)
Soft Law (guidelines, declarations, or principles)
- Declaration of Principles on Freedom of Expression in Africa
- Model Law for African States on Access to Information
- Declaration on Information and Communications Technology-Southern African Development Community
- Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and People’s Rights
- Guidelines for African Union Electoral Observations and Monitoring Missions
- African Commission on Human and People’s Rights
- African Court on Human and People’s Rights
- East African Court of Justice
- The Community Court of Justice
- Southern African Development Community Tribunal
- Special Rapporteur on Freedom of Expression and Access to Information
- Special Rapporteur on Human Rights Defenders
- Special Rapporteur on Rights of Women
- Working Group on Economic, Social and Cultural Rights