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n Law, Democracy & Development - Derogation from constitutional rights and its implication under the African Charter on Human and Peoples' Rights
The African Charter on Human and Peoples' Rights (African Charter or Charter) does not contain a clause permitting suspension of human rights during public emergency, while major human rights instruments allow state parties to suspend some rights. The African Commission on Human and Peoplesâ?? Rights (African Commission or Commission) has repeatedly held that a declaration of a state of emergency cannot be invoked as a justification for violations or permitting violations of the African Charter. The silence of the African Charter and the position of the African Commission have not been welcomed by some scholars.
The African Charter enjoys universal ratification as all member states of the African Union are parties thereto. Upon ratification, state parties have undertaken to adopt legislative and other measures to give effect to the rights recognised therein. However, an examination of their constitutions reveals that state parties have not taken sufficient legislative measures to ensure compatibility of their laws with the African Charter. As a result, many African constitutions contain derogation clauses.
This article argues that the omission of a derogation clause from the African Charter was not a mistake. And it is not a defect in the Charter. Rather, it shows positive development of human rights norms in Africa and should not be seen as a defect. The arguments calling for incorporation of a derogation clause fail to consider factors that may justify its absence. The incorporation of a derogation clause in the African constitutions and consequently derogating from constitutional rights are violations of the African Charter and other international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR).
The article is organised in seven sections. The first section introduces the issues to be explored. The second section discusses the meaning of important terms such as "derogation" and "public emergency," and the purpose served by derogating from human rights. The third section presents arguments against the absence of derogation clauses together with the factors that may justify their absence. The fourth section makes a brief survey of the African constitutions to examine their compatibility with the African Charter. The fifth and sixth sections discuss the implication of derogating from the constitutional rights under the African Charter and other human rights instruments respectively. The last section makes some concluding remarks.
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