THE PROMOTION AND PROTECTION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE RIGHT TO DEVELOPMENT UNDER THE AFRICAN REGIONAL HUMAN RIGHTS SYSTEM

Abstract

The promotion and protection of human rights in Africa is underpinned by the African Charter on Human and Peoples’ Rights (“the African Charter” or “Banjul Charter”) which was adopted by the Assembly of the Heads of State and Government of the Organisation of African Unity (OAU) on 27 June 1981. Other key instruments under the African human rights system are the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (which was adopted in July 2003 and addresses a variety of civil, political, economic, cultural and social rights) and the African Charter on the Rights and Welfare of the Child (which was adopted in July 1990 and entered into force on 29 November 1999). The former has not yet entered into force (as of August 2005, 12 states had ratified the Protocol which requires 15 ratifications to enter into force) while the latter has its own monitoring body, the Committee on the Rights and Welfare of the Child. Consequently, discussion of these two instruments is outside the scope of this note. The Charter entered into force on 21 October 1986 and had been ratified by 53 member states of the African Union (AU) as of July 2004. The African Union is a regional inter-governmental organisation that replaced the OAU. The Assembly of Heads of State and Government of the OAU adopted the Constitutive Act that established the AU in Lome, Togo, on 11 July 2000. The AU was officially launched in Durban, South Africa, on 10 July 2002. The African Charter aims to promote and protect a comprehensive list of rights which includes both individual and collective people’s rights. While its regional counterparts – the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the American Convention on Human Rights 1969 - guarantee only civil and political rights, the African Charter covers civil and political rights (the so-called “first generation” rights); economic, social, and cultural rights (the so-called “second generation” rights); and collective rights of peoples (the so-called “third generation” rights). The Charter also innovatively provides for duties of the individual and the state. This paper discusses the promotion and protection of economic, social
and cultural rights under the African Charter. It does this by first outlining the substantive content of the Charter. Secondly, it provides an overview of the supervisory mechanisms established in terms of the Charter. Next, the paper discusses the methods of promotion and protection of rights under the Charter and the limitations thereto. The paper then presents an overview of the jurisprudence of the African Commission on economic, social and cultural rights. The paper concludes with some comments on the effectiveness of the African human rights system.