Human Rights Cluster: AHSI1

 

Individual Rights and Duties

Leaders have recognised the undivided nature of rights:

• Individuals are entitled to a set of comprehensive rights and freedoms without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. In fact, Heads of State have expressed their belief that political organisations should be devoid of sectarian, religious, ethnic, regional or racial extremism and agreed to vigorously combat racism, extreme nationalism, religious extremism and xenophobic tendencies.
• Human beings are inviolable. Every human being is entitled to respect for his/her life and the integrity of his/her person. No one may be arbitrarily deprived of this right.
• People enjoy the same respect and have the same rights. As a result, nothing justifies the domination of a people by another.

Similar commitments have been made regarding equality before the law:

• Every individual is equal before the law and is entitled to equal protection of the law. No one should be exempted from accountability. The CSSDCA Solemn Declaration even speaks of “… accountability by leaders and officials as a shared community value”,
• Every individual has the right to the respect of the dignity inherent in a human being and to the recognition of his/her legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment are prohibited.
• Every individual has the right to liberty and to the security of his/her person. No one may be deprived of his/her freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
• Every individual has the right to have his/her cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his/her fundamental rights; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his/her choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.
• No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Freedom of conscience, profession and religion has received some, although less, attention. For example:

• Freedom of conscience, the profession and free practice of religion must be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
• Every individual has the right to express and disseminate his/her opinions within the law.

Leaders have guaranteed freedom of association and assembly, although it is sometimes qualified:

• Every individual has the right to free association provided that he/she abides by the law.
• Every individual has the right to assemble freely with others. The exercise of this right is subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
• Every citizen has the right of equal access to the public service of his/her country39 and Heads of State have agreed to involve all and sundry without discrimination in the management of public affairs.
• Every individual has the right to receive information.

While recognising these individual rights, Heads of State have sought to balance them with duties of the individual towards his/her family and society, the state and other legally recognised communities and the international community. As a result:

• Every individual has the duty to respect and consider his/her fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.
• The rights and freedoms of each individual must be exercised with due regard to the rights of others, collective security, morality and common interest.
• The individual has a duty not to compromise the security of the state whose national or resident he/she is.
• The individual has a duty to preserve and strengthen social and national solidarity, particularly when the latter is threatened.
• The individual has a duty to preserve and strengthen the national independence and the territorial integrity of his/her country and to contribute to its defense in accordance with the law.
• The individual has a duty to work to the best of his/her abilities and competence, and to pay taxes imposed by law in the interest of the society.
• The individual has a duty to preserve and strengthen positive African cultural values in his/her relations with other members of society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society.
• The individual has a duty to contribute to the best of his/her abilities, at all times and at all levels, to the promotion and achievement of African unity.

There is a degree of ambiguity amongst Heads of State in the right to property, as reflected in the following commitments:

• Every individual has the right of access to public property and services in strict equality of all persons before the law.
• The right to property is guaranteed and may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
• All peoples may freely dispose of their wealth and natural resources. This right will be exercised in the exclusive interest of the people and a people may not be deprived of it.
• In case of spoliation the dispossessed people have the right to the lawful recovery of its property as well as to an adequate compensation.

The right to an own culture, morals and traditional values is reflected as follows:

• Every individual may freely, take part in the cultural life of his/her community.
• The promotion and protection of morals and traditional values recognised by the community is the duty of the State.

Throughout Heads of State view the family is the natural unit and basis of society and enjoys the protection and support of the state.

African leaders have committed themselves to adopt, individually, at bilateral or regional levels, the necessary measures, in order to achieve progressively the free movement of persons, and to ensure the enjoyment of the right of residence and the right of establishment by their nationals.58 This should, from the onset, be envisaged in two stages, namely at (sub)regional level in the first instance, and then at continental level.59 Leaders have agreed to conclude a Protocol on the Free Movement of Persons, Right of Residence and Right of Establishment.60

Furthermore:

• Every individual has the right to freedom of movement and residence within the borders of a state provided he/she abides by the law.
• Every individual has the right to leave any country including his/her own, and to return to his/her country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
• A non-national legally admitted in a territory of a state party may only be expelled from it by virtue of a decision taken in accordance with the law.
• The mass expulsion of non-nationals, i.e. aimed at national, racial, ethnic or religious groups, is prohibited.
  

 

 

Self-Determination and Liberation

African Heads of State have recognised that all peoples have the right to existence, the unquestionable and inalienable right to self- determination, to freely determine their political status and to pursue their economic and social development according to the policy they have freely chosen.

At the same time colonised or oppressed peoples have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community.66 In this context struggles waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces, are not considered as constituting terrorist acts.

All peoples have the right to the assistance in their liberation struggle against foreign domination, be it political, economic or cultural.

All peoples 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.

To give effect to their commitments to human and peoples’ rights, Heads of State have established an African Commission on Human and Peoples’ Rights and an African Court on Human and Peoples’ Rights.

 

 

Children

African Heads of State have committed themselves to guarantee children’s rights and freedoms irrespective of race, ethnic group, colour, sex, religion, political or other opinion, national or social origin, fortune, birth or other status. Any child who is permanently or temporarily deprived of his/her family environment for any reason will, according to these leaders, be entitled to special protection and assistance. No child will be separated from his/her parents against his/her will, except when a judicial authority determines in accordance with the appropriate law, that such separation is in the best interest of the child.

Every child has the right to free association and freedom of peaceful assembly in conformity with the law. Every child, African leaders agree, has an inherent right to life—a right that Heads of State agreed must be protected by law. Leaders also agreed that the death sentence will not be pronounced for crimes committed by people under the age of eighteen.

Every child who is capable of communicating his/her or her own views will be assured the rights to express his/her opinions freely in all matters and to disseminate his/her opinions subject to such restrictions as are prescribed by laws. According to Heads of State, every child has the right to freedom of thought, conscience and religion and must be guided by their parents in the exercise of these rights having regard to the evolving capacities, and best interests of the child. In doing so Member States will respect the duty of parents and where applicable, legal guardians to provide guidance and direction in the enjoyment of the right to freedom of thought, conscience and religious rights subject to the national laws and policies. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity will be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views will be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.

According to African Heads of State, no child will be subject to arbitrary or unlawful interference with his/her privacy, family home or correspondence, or to the attacks upon his/her honour or reputation, provided that parents or legal guardians have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.

Every child accused or found guilty of having infringed penal law has the right to special treatment in a manner consistent with the child’s sense of dignity and worth and which reinforces the child’s respect for human rights and fundamental freedoms of others.

Heads of State agreed that states will, in particular:

a. Ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment;

b. Ensure that children are separated from adults in their place of detention or imprisonment;

c. Ensure that every child accused of infringing the penal law:

(i) will be presumed innocent until duly recognised guilty;

(ii) will be informed promptly in a language that he/she understands and in detail of the charge against him/her, and entitled to the assistance of an interpreter if he/she cannot understand the language used;

(iii) will be afforded legal and other appropriate assistance in the preparation and presentation of his/her defence;

(iv) will have the matter determined as speedily as possible by an impartial tribunal and if found guilty, be entitled to an appeal by a higher tribunal;

d. Prohibit the press and the public from trial.

African leaders have agreed that there must be a minimum age below which children will be presumed not to have the capacity to infringe the penal law.

Leaders agreed that states undertake to provide special treatment to expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and will in particular:

a. Ensure that a non-custodial sentence will always be first considered when sentencing such mothers;

b. Establish and promote measures alternative to institutional confinement for the treatment of such mothers;

c. Establish special alternative institutions for holding such mothers;

d. Ensure that a mother is not imprisoned with her child;

e. Ensure that a death sentence is not imposed on such mothers;

f. The essential aim of the penitentiary system will be the reformation, the integration of the mother into the family and social rehabilitation.

Heads of State agreed to take appropriate steps to ensure equality of rights and responsibilities of spouses with regard to children during marriage and in the event of its dissolution. In case of the dissolution of the marriage, provision will be made for the necessary protection of the child.

Leaders undertook to ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child. African leaders will take all necessary measures to ensure that no child takes a direct part in hostilities and refrain in particular, from recruiting any child.

Leaders will, in accordance with their obligations under international humanitarian law, ensure the protection of the civilian population in armed conflicts and take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules will also apply to children in situations of internal armed conflicts, tension and strife.

African Heads of State agreed that states, individually and collectively, must undertake to accord the highest priority to the special needs of children living under regimes practising racial, ethnic, and religious or other forms of discrimination as well as in states subject to military destabilisation.

Leaders agreed that every child has the right to acquire a nationality.98 National constitutional legislation must recognise the principles according to which a child will acquire the nationality of the state in the territory of which he/she has been born if, at the time of the child’s birth, he/she is not granted nationality by any other state in accordance with its laws.

African Heads of State have agreed to take all necessary measures to trace and re-unite children with parents or relatives where separation is caused by internal and external displacement arising from armed conflicts or natural disasters.

They will also ensure that states take all appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law will receive appropriate protection and humanitarian assistance.

Heads of State have undertaken to co-operate with existing international organisations that protect and assist refugees in their efforts to protect and assist such a child and to trace the parents or other close relatives or an unaccompanied refugee child in order to obtain information necessary for reunification with the family.

African Heads of State agreed that states will protect the child from all forms of sexual exploitation and sexual abuse, including: the inducement, coercion or encouragement of a child to engage in any sexual activity; the use of children in prostitution or other sexual practices; the use of children in pornographic activities, performances and materials.103 Member States were encouraged to take legal and educational measures to abolish practices that are harmful to normal growth and development of the child such as child marriage and female circumcision.

Leaders have agreed to take all appropriate measures to protect the child from the use of narcotics and illicit use of psychotropic substances, and to prevent the use of children in the production and trafficking of such substances.

Similarly leaders have agreed to take appropriate measures to prevent: the abduction, the sale of, or trafficking children for any purpose or in any form, by any person including parents or legal guardians of the child. African leaders agreed to establish an African Committee of 11 Experts on the Rights and Welfare of the Child within the OAU to promote and protect the rights and welfare of the child.

 

 

Women

African leaders urged states to work assiduously towards the elimination of discrimination against women and the abolition of cultural practices that dehumanise or demean women. Leaders have decided to elaborate a protocol to the African Charter for the more effective protection of women’s rights.

 

 

Refugees

Leaders have committed themselves to tackle the root causes of the problem of refugees and displaced persons, and to create conditions conducive to voluntary repatriation of refugees and return of displaced persons to their places of origin.

Heads of State have agreed on the fundamental right of refugees to return to their country of origin.111 They also agreed that the voluntary character of repatriation must be respected in all cases and no refugee may be repatriated against his/her will.

Leaders also agreed that the country of origin, on receiving back refugees, must facilitate their resettlement and grant them the full rights and privileges of nationals of the country, and subject them to the same obligations. States will not discriminate against a refugee on the basis of race, religion, nationality, membership of a particular social group or political opinions.

Refugees who voluntarily return to their country may in no way be penalised for having left it for any of the reasons giving rise to refugee situations. Conventional reintegration programmes should be complemented with activities which are more specifically designed to promote democracy, reconciliation and justice, including consensus-building on notions of responsibility and justice, and the promotion of human rights and majority rights. Assistance should always be provided on the basis of need, be non-discriminatory, community-based and participatory. Special attention should be given to unaccompanied minors and the need for their protection and reunification with their families, as well as recognition of the special importance of households headed by women and children in war-torn countries.

Leaders have also agreed to address the phenomena of armed elements and political activists in refugee camps, including the separation of armed elements from the civilian refugee population to ensure the civilian and humanitarian character of refugee camps and settlements.

Refugee camps should be located as far as possible from the frontier at the outset of an emergency operation rather than promoting their relocation at a later stage.

African Heads of State will use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality.

Leaders further agreed that no person will be subjected to measures such as rejection at the frontier, return or expulsion, which would compel him/her to return to or remain in a territory where his/her life, physical integrity or liberty would be threatened due to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion or who is compelled to leave his/her place of habitual residence due to country of origin or nationality due to external aggression, occupation, foreign domination or events seriously disturbing public order in order to seek refuge in another place outside his/her country of origin or nationality.

Refugees also have certain obligations and leaders agreed that a refugee must conform with the laws and regulations of the country that he/she finds him/herself in, as well as with measures taken for the maintenance of public order. He/she must also abstain from any subversive activities against any states, attack another state or engage in any other activity likely to cause tension between countries, and in particular by use of arms, through the press, or by radio.

Member States undertake to provide the Secretariat in the appropriate form with information and statistical data requested concerning: the condition of refugees; the implementation of the 1969 OAU Convention governing the Specific Aspects of Refugee problems in Africa, and laws, regulations and decrees which are in force relating to refugees.

Leaders agreed to co-operate with the Office of the UN High Commission and agreed in this context to the opening of the Special Contingency Fund for Refugees to voluntary contributions.

African leaders directed the OAU to establish a monitoring function to ensure that all states adhere rigorously to African and international laws and conventions which establish clear standards of acceptable treatment for refugees.

Heads of State and non-state actors are to allow unconditional and unhindered access to protect and assist refugees and other persons in need.

 

 

Asylum

Heads of State agree that every individual has the right, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions.

The granting of asylum to refugees is a peaceful and humanitarian act and will not be regarded as an unfriendly act by any Member State.

Where a country finds difficulty in continuing to grant asylum to refugees, it may appeal directly to other states to take appropriate measures to lighten the burden of the state granting asylum.

Leaders agreed that where a refugee has not received the right to reside in any country of asylum, he/she may be granted temporary residence in any country of asylum in which he/she first presented him/herself as a refugee pending arrangement for his/her resettlement.

For reasons of security, countries of asylum will, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin.

The country of asylum, in collaboration with the country of origin, will make adequate arrangements for the safe return of refugees who request repatriation.

Refugees who freely decide to return to their homeland, as a result of such assurances or on their own initiative, will be given every possible assistance by the country of asylum, the country of origin, voluntary agencies and international and intergovernmental organisations, to facilitate their return.

For the purpose of strengthening peace, solidarity and friendly relations, states must ensure that:

a. Any individual enjoying the right of asylum will not engage in subversive activities against his/her country of origin or any other state;

b. Ttheir territories will not be used as bases for subversive or terrorist activities against the people of any other state.

Member States must issue to refugees lawfully staying in their territories travel documents in accordance with the UN Convention relating to the Status of Refugees and the Schedule and Annex thereto, for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require. Member States may issue such a travel document to any other refugee in their territory.