1

INTRODUCTION The idea of rights or specifically human rights has a number of varying definitions. One such definition is those basic standards without which people cannot live in dignity. Another is that human rights are the rights a person has simply because he or she is a human being. They are the basic entitlements or minimum standards to be met for individuals to live with dignity. These rights are held by all persons equally, universally and forever, they are inalienable: meaning you cannot lose these rights anymore than you can cease being a human being, they are inherent: meaning a person is born with them, they are indivisible: meaning you cannot be denied a right because it is less important or non essential and they are interdependent: meaning they are part of a complementary framework, for instance your ability to participate in your government is directly affected by your right to express yourself, to get an education, and even to obtain the necessities of life. What all this means is that these rights are acquired by each individual at birth and are therefore, not a gift conferred on a person by the state. Human rights are not the particular privilege of citizens of certain states, but something to which every human being everywhere, is entitled by virtue of the simple fact of being human and rational Cranston.1 HISTORY AND DEVELOPMENT OF HUMAN RIGHTS The concept of human rights started with the principles of natural law, which was believed to have come from God himself. According to these principles all human beings were made in the image of God and thus were all equal meaning that human right laws apply to all people. These laws are built on varied legal systems and traditions which are a universally agreed set of non-negotiable standards and obligations. These basic or rather fundamental standards called human rights set minimum entitlements and freedoms that should be respected by governments. Professor Anyangwe2 said that: The struggle for human rights
1 2

Cranston, M. (1962) Human Rights Today. London: Ampersand Anyangwe, C. (2004). Introduction to Human Rights and Humanitarian Law. Lusaka: UNZA Press.

has a long and checkered history precisely because it is all about the need to protect the individual against the abuse of power by the monarch, the tyrant or the state. They are based on the respect for the dignity and worth of each

individual, regardless of race, colour, gender, language, religion, opinion, origins, wealth, birth status or ability and therefore are universal meaning that they apply to every human being everywhere. With these rights stems the obligation on both governments and citizens not to infringe on the parallel rights of others. These standards are both interdependent and indivisible; we cannot ensure some rights without or at the expense of other rights. In the modern world today more especially in developed countries the rights and freedoms that an individual enjoys are regarded as very important, for instance according to Jacqueline Martin3 in the UK it is said everyone lives in a free society. What this means is that all citizens irrespective of race, color, creed etc have certain basic rights and freedoms such as freedom of speech, freedom to practice ones chosen religion, freedom from discrimination because of race or sex and the right to liberty. Human Rights originate, from earlier tradition and documents of a number of varied cultures and it is only after the Second World War that it has reached a global scale and into the global movement that it is today. In the past, people acquired rights and responsibilities through their membership in a group a family, indigenous nation, religion, class, community, or state. Most societies have had traditions similar to the natural laws "Do unto others as you would have them do unto you." According to Robertson4 the first literature on human rights was found in the writings of a number of Asian rulers and philosophers in documents such as Babylonian Code of Hammurabi, the Charter of Cyrus which addressed questions of peoples duties, rights, and responsibilities. In addition, the Bible, the Quran and the writings of Buddha contain the concepts of human equality. In fact, all societies, whether in oral or written tradition, have had systems of propriety and justice as well as ways of tending to the health and welfare of their members.
3 4

Martin, J. (2001). GCSE Law. London: Hodder and Stoughton Robertson, A.H. (1982) Human Rights in the World. Manchester: Manchester Univerity Press.

Later on documents asserting individual rights emerged, such as the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791) these were the written precursors to many of todays human rights documents. Although it must be mentioned that a good number of these documents, in their original forms, excluded women, blacks, and members of certain social, religious, economic, and political groups. Nevertheless, oppressed people throughout the world have drawn on the principles these documents express to support revolutions that assert the right to self-determination. Through these landmark events of uprising and subsequently documents in England, United States of America, France and the works of eminent middle age scholars such as Montesquieu, Rousseau and Jefferson, the idea and movement of human rights survived the influence of retrogressive doctrines of positivism and absolutism and despite these drawbacks struggled on, culminating into the General Assembly of the United Nations 1948, articulating rights for all members of the human family in the Universal Declaration of Human Rights with its preamble stating that: Recognition of the Inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The assembly sought to create a document that would reflect the hopes, aspirations and protections to which every person in the world was entitled. The assembly further adopted two more multilateral agreements to supplement the declaration in 1966 these were the ICCPR5 and the ICESCR6. According to Professor Anyangwe7 these three documents were the backbone of the whole body of human rights and collectively known as the International Bill of Human Rights which have spelt the content of human rights in international, regional and national instruments and classifying them into three distinct categories: First Generation Human Rights, referring to civil and political rights; Second Generation Human Rights referring to
5

International Convention for Civil and Political Rights International Convention for Economic Social and Cultural Rights 7 Ibid 2

economic, social and cultural rights; Third Generation Human Rights referring to solidarity, collective or peoples rights. It is from this bedrock that regional human rights instruments were adopted. In Africa and Europe, regional documents for the protection and promotion of human rights extended the international bill of human rights and created the African Charter of Human and Peoples Rights and the European Convention of Human Rights. These tackle international issues as well as unique regional human rights issues. THE AFRICAN CHARTER and THE EUROPEAN CONVENTION of HUMAN RIGHTS. The European Convention on Human Rights is an international treaty to protect human rights and fundamental freedoms in Europe and was adopted by the Council of Europe in 1950, and entered into force on 3 September 1953. The Convention originally created both a European Commission which is the body that organizes the meetings of the member states and processes the human rights violation complaints which if genuine are taken to the European Court of Human Rights entrusted with adjudication and enforcement of any judgements passed on the parties. According to Wikipedia8 any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgments finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international
8

European Convention on Human Rights. (n.d.). Retrieved April 7,2011, from Wikipedia, the free encyclopedia: http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights.

law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used. The Convention consists of three parts. the main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II Articles 19 to 51 sets up the Court and its rules of operation. Section III contains various concluding provisions. The Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom such as the right to life9 but the second contains various exclusions, exceptions or limitations on the basic right which excepts certain uses of force leading to death10. The African Charter on Human and Peoples Rights is the instrument for international human rights for the African region, also known as the Banjul Charter and is the youngest of the three regional systems of Human rights protection. It was created to promote and protect human rights and basic freedoms in the African continent by the Organisation of African Unity now African Union who at their assembly in 1979 adopted a resolution calling for the creation of a committee of experts to draft a human rights instrument to cater for the whole of Africa similar to the ones that existed in Europe and America. It consists of 68 articles arranged in three parts. Part I11 comprises the provisions stating various rights and duties of the state and individual. Part II12 comprises provisions for enforcement mechanisms and establishes the commission stating its mandate, procedure for submission for communication and applicable principles. Part III13 deals with miscellaneous matters. The African Charter has a lot of similarities with the European Convention for Human Rights, but also has a number of unique characteristics concerning the norms it recognizes and also its supervisory mechanism.

Article 2(1) of The European Convention of Human Rights Article 2(2) of The European Convention of Human Rights 11 Articles 2-26 of the ACHR 12 Articles 30-59 of the ACHR 13 Articles 60 69 of the ACHR
10

The African Charter and European Convention Contrasted. The Charter like the Convention both derive most of their provisions from the United Declaration of Human Rights, firstly recognizing universally accepted civil and political rights14. These are liberty oriented which include the right to freedom from discrimination, equality, life and personal integrity, dignity freedom from slavery, freedom cruel, inhuman or degrading treatment or punishment, rights to due process concerning arrest and detention, the right to fair trial, freedom or religion, freedom of information and expression, freedom of association, freedom of assembly, freedom of movement, freedom to political participation, and the right to property. An illustration of a claim to a first generation or substantive human right is the case of S v Ncube and Others,15 this was a Zimbabwean case which was about the constitutionality of corporal punishment. The Zimbabwean Supreme Court struck down a corporal punishment statutory provision as unconstitutional in that it conflicted with section 15(1) of the Zimbabwean constitution, which prohibits the infliction on any convict of an inhuman or degrading punishment or treatment. That judgement stated inter alia, that the power of the state to punish should be exercised within limits of civilized standards. These rights are liberty oriented because they declare peoples freedoms to do what they do, what they choose, go where they want to go and live where they please. In addition these rights are positive individual rights which are usually enforceable against their violators through the courts although unlike in the European Convention which has set up a fully functional judicial court to handle adjudication, the court under the African Charter is not yet functional even though the framework for its set up is in place, at present there is only a quasi judicial commission which sets up tribunals to enforce and adjudicate. In addition to this the European court is the national highest court of the member states in all human rights cases for instance this court is above the House of Lords in
14 15

Articles 2-26 of the ACHR and Articles 2-18 of the ECHR (1988) 2 S. A., 702 (ZSC)

England, meaning that in human rights cases, a party can appeal from the House of Lords to the European Human Rights Court which in is not the case with the African Charter. It must be mentioned also that it is believed by some eminent people in human rights that in comparison to the European Convention the African Charters coverage of some civil and political rights is rather inadequate, for instance the right to privacy or the right against forced labour or compulsory are not well recognized, although they may be encompassed in a number of articles they are not explicitly mentioned. Below are a few more differences. Whereas the European Convention prohibits the death penalty the Charter only broadly protects the right to life.16 In the European Convention the elements of the right to liberty17 and security are fully stated such as the right to be informed at the time of arrest or the reasons for arrest whereas in the African Charter the right is generally guaranteed but the elements are not stated. Unlike the European Convention the African Charter does not guarantee the rights to the privacy of family life, home and correspondence. Another distinct feature that contrasts the two regional human rights instruments is that the African Charter has a distinctly African character in that going by the African culture and values it is the only regional instrument which recognizes the duties of the individual towards his family, society and the state. Second the African Charter like the European Convention recognizes certain economic social and cultural rights. These are also known as second generation rights and the purpose of these rights is to ensure global social justice, encompassing such rights as the right to work, the right to social security, the right to health, and the right to education. They enhance the free development of personality through the efforts of the state and international cooperation. An example of a case regarding second generation rights is the landmark case Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria18 where it was alleged that the government of
16 17

Article 4 of the ACHR Article 6 of the ACHR 18 (2001) Communication 155/96

Nigeria violated articles 2, 4, 14, 16, 18(1), 21 and 23 of the African Charter. The communication was declared inadmissible and the Nigerian government was found in violation and the commission observed that the charter imposes a clear obligation upon a state party to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation and to secure an ecologically sustainable development and use of natural resources. Third the African Charter recognizes third generation rights known as solidarity, collective or peoples rights and in certain other cases known as peoples and groups rights. The charter recognizes these rights to a degree not matched by the European Convention in a number of provisions such as family protection by the state,19 a peoples right to equality,20 the right to self determination,21 right to development,22 the right to peace and security,23 satisfactory environment.
24

and the right to generally

In the case Dr Gumne and Ors (on behalf of South

Cameroon) v Republique du Cameroon25 the African Commission declared as admissible a communication filed by Dr. Kevin Nwang Gumne and members of the SCNC and SCAPO (for themselves and on behalf of the People of the South Cameroon as respondents) stating that: The substance of the complaint of the people of the Southern Cameroons is that the rights recognized to peoples under the African Charter on Human and Peoples Rights have, for the people of the Southern Cameroons, been suppressed by Rpublique du Cameroun (the Respondent State) through domination and colonization in violation of the Charter; and that Rpublique du Cameroun is guilty of a series of gross, massive, continuing and reliably attested human rights violations in respect to named citizens and groups of citizens of the Southern Cameroons. It further stated that: The Commission is requested to find Rpublique du Cameroun (the Respondent State) guilty of these violations; to reaffirm the inherent,
19 20

Article 18 of the ACHR Article 19 of the ACHR 21 Article 20 of the ACHR 22 Article 22 of the ACHR 23 Article 23 of the ACHR 24 Article 24 of the ACHR 25 (2003) Communication 266

unquestionable and inalienable right of the people of the Southern Cameroons to self-determination Effectiveness of the African Charter on Human Rights and European Convention on Human Rights Human rights instruments can only be effective if they have strong implementing bodies and binding force on the member states. So as far as the effectiveness is concerned it is clear that due to a number of factors the two regional instruments cannot be at the same level. It is obvious that the African Charter as compared to the European Convention for Human Rights has several challenges that has led to it not being as effective as its counterpart of which some of the reasons are: Lack of permanence, this is due to the fact that the African Human Rights Commission which is the implementing body is not a permanent body but only meets twice a year, each session lasting three weeks whereas the European Commission and the court are permanent. Receivability and admissibility hurdles, meaning there is too much bureaucracy in receiving complaints in that complaints are first sent to the secretariat where it is received and only registered if it meets the requirements. It is not normally registered if the allegation is not against a state party to the charter. Further there are seven admissibility requirements provided for under Article 56 of the Charter. Whereas the European Convention allows any victim of human rights violation to lodge in a complaint and against any party of the member states and the admissibility procedure has only three stages Non binding, decisions passed by the African Commission are non binding as opposed to decisions passed by the European Human Rights Court. What this means is that the commission does not have power to enforce its decisions against states that have violated the provisions of the charter all it can do is request that the assembly publishes the names of states found to have violated any human rights in order to shame the delinquent governments into complying.

10

No mandate to order remedies: the commission has no clear mandate to order remedies. In the case Mekongo v Cameroon26 the commission ordered compensation but did not specify the amount of monetary compensation due to the fact that unlike a court in the case of the European Court of Human Rights it lacks the necessary expertise to do so. Lacks autonomy: since the commission is an organ under the AU which is a political organization, It falls under the AUs structure meaning it lacks autonomy. The problem with such a situation is that since the AU comprises member states who maybe the violators of human rights it is likely they can exert pressure to influence the commissions decision. Nomination and Election of Commissioners: commissioners are elected at the AU summit by the member states from amongst their people in some cases people holding ministerial and ambassadorial positions, resulting in the commission lacking independence and impartiality due to conflict of interest. Lack of Funds: the commission has financial constraints due to the fact that the AU does not fund it accordingly and depends on donor funding making its operations difficult and as such ineffective. AU Endorsement: certain actions of the commission require AU endorsement or approval such as when the commission interprets a provision in the charter, it does not acquire binding force until it is endorsed by the AU. In conclusion it is right to say that The European Convention on Human Rights is more effective than the African Charter on Human Rights due to the factors mentioned above, it is no wonder why many states in Africa who are well aware of these weaknesses ignore the Commission with impunity.

26

(1991) Communcation 59/91

11

Bibliography
African Charter on Human and Peoples Rights. (n.d.). Retrieved April 7, 2011, from Wikipedia, the free encyclopedia: http://en.wikipedia.org/wiki/African_Charter_on_Human_and_Peoples'_Rights Anyangwe, C. (2004). Introduction to Human Rights and International Humanitarian Law. Lusaka: UNZA Press. Cranston, M. (1962). Human Rights Today. London: Ampersand. European Convention on Human Rights. (n.d.). Retrieved April 7, 2011, from Wikipedia, the free encyclopedia: http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights Martin, J. (2001). GCSE Law. London: Hodder and Stoughton.

12

Cases Cited
S v Ncube and Others Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria (2001) Communication 155/96 Dr Gumne and Ors (on behalf of South Cameroon) v Republique du Cameroon (2003) Communication 266 Mekongo v Cameroon (1991) Communcation 59/91