Article 1: Obligations Under the African Charter on Human and Peoples’ Rights
The Member States of the Organisation of African Unity parties to the present Charter shall recognize the rights, duties, and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them.
Article 1 of the African Charter on Human and Peoples’ Rights (hereinafter, the “Charter”) forms the cornerstone of the Charter’s Bill of Rights. Although it does not directly articulate a specific right, it imposes a fundamental duty on States to ensure the effective realization of the rights enshrined in the Charter.
General and Specific Implications of Article 1
Article 1 has broad and specific implications. Broadly, it applies universally to all rights within the Charter. The African Commission on Human and Peoples’ Rights (hereinafter, the “Commission”) held in Jawara v. The Gambia that a violation of any right automatically implies a breach of Article 1.
A closer reading of Article 1 reveals two distinct but interconnected obligations. The first requires States to recognize the rights enshrined in the Charter. This obligation can be understood as a negative duty–not to undertake any actions or implement any measures that would undermine the existence of a right protected under the Charter or to impede its execution. The second obligation entails a positive duty to adopt legislative or other measures to give effect to those rights.
Most applicants before the Commission invoke Article 1 alongside other rights. When there is a purported conflict between national law and the charter, such as when States attempt to assert the supremacy of their domestic laws or claim legislative gaps hinder the realization of Charter rights, Article 1 may also be invoked to resolve the conflict. The Commission has consistently affirmed that States must align their national laws with the Charter.
In Jawara v. The Gambia, the Commission condemned the suspension of the Bill of Rights in The Gambia’s Constitution, citing Article 1:
Article 1 of the Charter provides that: “The member States parties to the present Charter shall recognize the rights, duties, and freedoms enshrined in this Charter…” This provision gives the Charter the legally binding character attributed to international treaties.
The Commission further held:
By suspending Chapter 3 (the Bill of Rights), the government restricted the enjoyment of the rights guaranteed therein, and by implication, the rights enshrined in the Charter.
This underscores the obligation under the recognition clause to maintain the binding nature of Charter rights.
State Responsibility and the Fourfold Obligation
Formal legal recognition of the rights enshrined in the Charter alone will not be enough to fulfill the obligations of a State under Article 1, as States also have a positive duty to adopt any necessary legislative or non-legislative measures to ensure that these rights are realized in practice.
In Zimbabwe Human Rights NGO Forum v. Zimbabwe, the Commission outlined a fourfold obligation under Article 1:
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Duty to Respect: States must refrain from directly or indirectly violating Charter rights.
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Duty to Protect: States must protect individuals from rights violations by other parties and investigate and punish violators where necessary.
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Duty to Promote: States must create an enabling environment for human rights realization through education and sensitization.
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Duty to Fulfill: States must progressively develop frameworks to implement human rights despite potential limitations.
Scope of Implementation
Human rights are often progressively fulfilled, requiring subjective assessment of State compliance. In Zimbabwe Human Rights NGO Forum, the Commission noted:
The extent of a State’s responsibility must not be determined in the abstract. Each case must be treated on its own merits, considering the specific circumstances and rights violated.
Although “means at the disposal” may vary, States must meet minimum requirements, particularly concerning non-derogable rights. The Commission’s reference to non-derogable rights likely pertains to fundamental civil rights, as opposed to social, economic, cultural, and solidarity rights.
Conclusion
In summary, the recognition clause of Article 1 imposes a legislative duty on States to give effect to Charter rights. The implementation clause broadens this duty, requiring States to adopt necessary measures to ensure the full realization of these rights. Together, these clauses establish a robust framework for human rights protection and promotion within the African context
