Introduction

This paper aims to ascertain the position of the African Commission on Human and Peoples
Rights1 with regard to the states derogating from the human rights provisions contained in the
ACHPR. It will do so with the help of at least four cases. It will also highlight the distinction
between limitations and derogation within the human rights discourse with relevant authorities.
The paper will then draw a conclusion from the discussion.
The African Charter on Human and Peoples Rights2 does constitute an integral part in the fight
for the realization of international human rights model on the African continent. It is the regions
principal human rights instrument. Paradoxically, Africa has the worst record in upholding
human and peoples rights and yet in its charter there is no clause that allows derogations from
the human rights provisions contained therein. With the prevalence of so many civil wars,
torture, arbitrary detentions and conflicts on the continent, one would rightly expect that the
African Commission would have taken a similar line to the European Convention on Human
Rights in Article 15, and allow member states to derogate from human rights in such tumultuous
times.3 Subsequently, in a case of Commission Nationale des Droits de lHomme et des Libertes
v. Chad4, the African Commission had this to say:
[T]he African Charter, unlike other human rights instruments, does not allow for State
Parties to derogate from their treaty obligations during emergency situations. Thus, even
a civil war in Chad cannot be used as an excuse by the State violating or permitting
violations of rights in the African Charter.
From the above statement, it is clear that the Commission does not take kindly to derogation
from the human rights provisions as contained in the Charter regardless of the circumstances.
The Commission is like an umbrella with holes. The Charter extensively deploys claw back
1

Hereinafter The Commission

Hereinafter The Charter
3
D. P. Forsythe, Encyclopedia of Human Rights Volume 1, Oxford University Press, USA.
4
Commission Nationale des Droits de lHomme et des Libertes v Chad (2000) AHRLR 66 (ACHPR 1995).
2

clauses that could effectively curtail the rights supposedly guaranteed. Clauses such as ...except
for reasons and conditions previously laid down by law..., 5 subject to law and order..., and
...provided he abides by the law... figure a lot. The Commission was set up under the Charter
with the intention of promoting and protecting human rights and basic freedoms on the African
continent. But this had not been the case. The case of Free Legal Assistance Group, Lawyers
Committee for Human Rights, Union Interafricaine des Droits de lHomme, les Temoins de
Jehovah v. Democratic Republic of Congo6 shows how the Commission has lamentably failed
to that which it was established for. There has been a flagrant disregard of human rights in the
Democratic Republic of Congo and all the Commission does is to give ineffectual
acknowledgement. In the above mentioned case, there were inter alia, arbitrary arrests,
detentions torture, extra-judicial executions, and unfair trials, severe restrictions placed on the
right to association and peaceful assembly and suppression of the freedom of the Press. The
Commission simply glossed over these claims while acknowledging that they constituted serious
and massive violations of the Charter but could not in any way mete out punishment on the
Democratic Republic of Congo for the violations.
Another hiccup with the Commission is that cases are not disposed of within a reasonable time
frame. A case in point is that of the Chirwas7 who were abducted from Zambia to Malawi in
1981. They were tried and convicted for treason and sentenced to death though the sentences
were commuted to life imprisonment. This case was communicated to the Commission on the 5 th
of March 1992. Orton Chirwa died while in incarceration. Justice was denied due to the delay in
disposing of the case by the Commission. By the time a case is disposed of, the regime that
committed the violations would even be out of office. The Commission has been ineffective in
this area too. To show further that the Commission has failed to take decisive action against State
Parties that blatantly violate human rights, there is the case of Kenneth Good v. Republic of
Botswana.8 The facts of the matter are that Kenneth Good an Australian national was expelled
from the country and had his job terminated by the University of Botswana after participating in
writing an article that critiqued the presidential succession in Botswana. 9 It concluded that
5

Article 6 of The African Charter on Human and Peoples Rights.

Group, Lawyers Committee for Human Rights, Union Interafricaine des Droits de lHomme, les Temoins de
Jehovah v. Democratic Republic of Congo 25/89-47/90-56/91-100/93
7
Achuthan and Another (On behalf of Banda and Others) v Malawi (2000) AHRLR (ACHPR 1994) 144.
8
Communication No. 313/05, Kenneth Good v. Republic of Botswana (2009).
9
http://www.achpr.org/communications/decision/313.05/accessed 09/09/16.
6

Botswana is a poor example in Africa of presidential succession. The complainant was declared
an undesirable inhabitant of, or visitor to, Botswana and was deported to South African without
being given an opportunity to be heard. The Judiciary could not help the matter either. A
complaint was lodged citing that the Respondent State violated Articles 1, 2, 7.1.a, 9, 12.4, and
18 of the Charter. The Commission found that Botswana did violate Articles 1, 2, 7.1.a, 9, 12.4
and 18.1 of Charter and recommended the following:
1. that the Respondent State provides adequate compensation to the victim for the loss
and cost he has incurred as a result of the violations. The compensation should
include but not be limited to remuneration and benefits he lost as a result of his
expulsion, and legal costs he incurred during litigation in domestic courts and before
the Commission. The manner and mode of payment of compensation shall be made in
accordance with the pertinent laws of the Respondent State; and
2. The Respondent State should take steps to ensure that Sections 7(f), 11(6) and 36 of
the Botswana Immigration Act and its practices conform to international human rights
standards, in particular, the African Charter.
Showing brazen contempt for the Commission, Botswanas Minister of Foreign Affairs
responded to these recommendations by saying that We are not going to follow on the
recommendation made by the Commission. It does not give orders and it is not a court. We are
not going to listen to them. We will not compensate Mr. Good. 10 The Commission has failed to
take appropriate measure with regards to State Parties that flagrantly violate human rights. The
case of Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria 11 shows
another blatant disregard of human rights. In the name of making profit, the Nigerian
government, a signatory to the African Charter, utterly disregarded the rights of the Ogoni people
as provided in articles 2, 4, 14, 16, 18.1, 21, 22 and 24 of the Charter when it deprived them of
the right to food, polluted the environment, shot and killed innocent citizens and evicted others
from their habitat leaving them homeless. The government particularly violated article 22 12
which states:
10

Manisuli Ssenyonjo ed., The African Regional Human Rights System, 2012, pg. 91, Martinus Nijhoff Publishers,
Boston.
11
Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria (2001) AHRLR 60 (ACHPR 2001).
12
African Charter on Peoples and Human Rights.

1. All peoples shall have the right to their economic, social and cultural development
with due regard to their freedom and identity and in the equal enjoyment of the
common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the
right to development.
The Nigerian government was held to have violated the above mentioned articles and an
appealed was made to the Federal Republic of Nigeria to ensure protection of the environment,
health and livelihood of the people of Ogoniland. Like in all other cases, the Commission gave a
lackadaisical appeal to the government with no consequences for failure to follow through.
Distinction between Limitations and Derogations
Limitation and derogation clauses in treaties have a similar function in the sense that both
provide legal avenues for states to break free of obligations that would ordinarily restrain their
actions. Individuals rights often come in conflict with the needs of society, in order to ameliorate
this, mechanisms have been provided by international human rights treaties. 13 Derogations from
and limitations to have been devised with the aim of interfering with the human rights of
individuals. Each of these concepts serve a different purpose. For the implementation of
limitations, the requirements are usually less stricter than those for derogations. In order to
grapple with exceptional circumstances, states are granted special powers whose employment
may violate human rights. Limitations are employed in time of calm and allow an interference
with human rights on the basis of collective exigencies, specifically put in the provision itself. To
derogate from the provisions of human rights in times of peace, would be unlawful, but justified
in states of emergency. Schreuer14 opines that a derogation comprises suspension and not
abrogation of certain rights in times of state of emergency. The only ground for the introduction
of derogable clauses is the declaration of an exceptional and temporary state of emergency
posing a threat to the life of a nation. 15 Limitation clauses show that the right in question is not
absolute for it may be tampered with the exercise of rights by other people. On the other hand,

13

L. Doswald-Beck, Human rights in time of conflict and terrorism, OUP, 2011.

C. Schreuer, Derogations of human rights in situations of public emergency: the experience of the European
Convention on Human Rights (1982-1982) 9 Yale Journal of the World Public Order, 113.
15
Article 4 of the International Covenant on Civil and Political Rights.
14

derogations could completely suspend the enjoyment of certain individual rights to meet the
exigencies of the situation or crisis.
Conclusion
The ACHPR has failed lamentably in promoting and maintaining human rights in the region.
Constitutions of individual states such as Zambia, in Article 25 of the 1996 Constitution, 16 have
enshrined in it a clause allowing the state to derogate from the human rights provisions contained
in the ACHPR to which Zambia espouse. As has already been alluded to, Africa has been marred
by utter disregard of human rights. It is appalling that the ACHPR which does not contain any
derogation clause in it, does not have the teeth to bite on those states that derogate from the
human rights as provided in the Charter. The distinction between derogations and limitations is
not so clear in practice. Ordinarily, the exercising of freedom by individuals may be tampered
with in a day to day life in the interest of national security or public safety. So these rights
exercised by individuals are not absolute when they come into conflict with other peoples rights
and freedoms. For the derogation from human rights of individuals, this can only be invoked in a
state of emergency and only for a specified period of time and for a specific purpose. The
ACHPR needs more teeth so that it is able to take necessary measures to force member states to
adhere to the provisions of the Charter.

16

Article 25, of the Constitution of Zambia Act, 1996.

Bibliography
Statute
The Constitution of the Republic of Zambia, 1996.

Regional Instruments
African Charter on Peoples and Human Rights.
African Commission on Human and Peoples Right.
European Convention on Human Rights.
International Covenant on Civil and Political Rights

Case Law
Commission Nationale des Droits de lHomme et des Libertes v. Chad, (2000) AHRLR 66
(ACHPR 1995).
Free Legal Assistance Group, Lawyers Committee for Human Rights, Union Interafricaine des
Droits de lHomme, les Temoins de Jehovah v. Democratic Republic of Congo, 25/89-47/9056/91-100/93.
Kenneth Good v. Republic of Bostwana, Communication No. 315/05 (2009).
Achuthan and Another (On Behalf of Banda and Others) v. Malawi (2000) AHRLR (ACHPR
1994) 144.
Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria, (2001) AHRLR 60
(ACHPR 2001).

Books
Doswald-Beck, C., Human rights in time of conflict and terrorism, Oxford University Press,
2011.
Forsythe, D. P., Encyclopedia of Human Rights Volume 1, Oxford University Press, USA.
Manisuli Ssenyonjo ed., The African Regional Human Rights System, 2012, pg. 91, Martinus
Nijhoff Publishers, Boston.

Journal
Schreuer, C., Derogations of human rights in situations of public emergency: the experience of
the European Convention on Human Rights (1982-1982) 9 Yale Journal of the World Public
Order, 113.

Website
http://www.achpr.org/communications/decision/313.05/accessed