n African Human Rights Law Journal - The absence of a derogation clause from the African Charter on Human and Peoples' Rights : a critical discussion




Unlike other regional instruments of a general nature protecting human rights (the European Convention and the American Convention) and the International Covenant on Civil and Political Rights, the African Charter contains no clause on the derogation of human rights. This absence must be contrasted with the fact that most African constitutions contain such a clause and that African states frequently declare states of emergency. This deviation from the norm raises several questions that form the subject of this article. Should the limitation clause be considered to offer equivalent, or even a superior, protection to the derogation clause? What is then the specific scope of application of the derogation clause? Must the absence of a derogation clause be interpreted as being more or less favourable for the protection of human rights? What is the position of the African Commission? How does one reconcile international agreements that contain a derogation clause and the African Charter? Two arguments will be presented: one which favours a derogation clause and one which does not.


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