The supremacy of the bill of rights contained in national legislations (constitutions, specifically) over any other provision cannot be over emphasized. Realizing and acknowledging that human rights are universal, indivisible and inalienable, there are certain rights which are pivotal to and actually engender the enjoyment of other rights: Article 13 of the African Charter on Human and Peoples’ Rights (the African Charter) is a perfect example, the right to political participation. For example, the African Commission on Human and Peoples’ Rights (the Commission), in Resolution on The Gambia – ACHPR/Res.13(XVI)94, amply emphasized the need for “governments to be based on the consent of the people” and reiterated that “military rule is a clear setback to the cause of democracy and democratic development”. In short, the right to political participation is a sine qua non to a healthy, participatory democracy. To this effect, the Commission stated in Resolution on the Military – ACHPR/Res.10(XVI)94 that “the best government is one elected by, and accountable to, the people”.
Article 13 of the African Charter states thus:
- Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
- Every citizen shall have the right of equal access to the public service of his country.
- Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
Firstly, this article will analyze Article 13 by drawing inspiration from the Commission’s jurisprudence and, where applicable and relevant thereto, from other regional and international human rights tribunals.
The right of every citizen to participate freely in the government of his or her country is given effect by the State through the enactment of laws that guarantee the right to vote, and that universal suffrage is one of the foundational values of a constitutional order. A necessary element of the right guaranteed under Article 13(1) is the right to participate in elections (presidential, parliamentary, by elections etc.) which are the only means by which a people can democratically elect the government of their choice. The right to vote is an inherent right of all citizens and its exercise is a crucial part of democracy, such that its denial would itself imperil a democracy.
In Communication 430/12 – Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights) v The Republic of Zimbabwe, the Commission recognizes that the right to participate in government forms an integral and inextricable part of democracy, such that a State cannot be considered a democracy if it does not guarantee the right of its citizens to participate in government through free and fair elections.
However, it is interesting to note that since the African Charter does not explicitly state the right to vote, the Commission in several Communications had emphasized that “the right to participate in government must therefore be interpreted in the widest possible sense so as to include all forms of elections, whether local or national, parliamentarian or presidential, referenda or any other modes by which individuals participate in elections, Human Rights Committee on Civil and Political Rights, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25) (CCPR General Comment) paras 6, 10.
Despite its fundamental importance to democracy, the African Charter nevertheless recognizes the prerogative of States to legitimately restrict the right to participate in government. However, this does not entitle the State to impose a blanket ban or restriction on the exercise of this right. The Commission notes that such restrictions must be based on “objective and reasonable” grounds, Communication 241/01 – Purohit and Moore v the Gambia (2003) ACHPR para 76. Additionally, the African Court on Human and Peoples’ Rights (the African Court) stated that “restrictions must be necessary in a democratic society [and] they must be reasonably proportionate to the legitimate aim pursued, Application 011/2011 – Reverend Christopher R. Mtikila v the United Republic of Tanzania (2013) AFCHPR para106.
It is interesting to note that there is currently no communication specifically on subsections 2 and 3 of Article 13 of the African Charter. However, there are Communications on Article 14 (the right to property) which is applicable to article 13 (3). In Communication 290/2004 – Open Society Justice Initiative (on behalf of Pius Njawe Noumeni) v. the Republic of Cameroon para 195 it was opined thus: “The right to property encompasses two main principles. The first one is of a general nature. It provides for the principle of ownership and peaceful enjoyment of property. The second principle provides for the possibility and conditions of deprivation of the right to property. Article 14 of the Charter recognises that States are in certain circumstances entitled, among other things, to limit the use of property in accordance with the public or general interest, by enforcing such laws as they deem necessary for the purpose.”
Accordingly, the Commission reiterates that limitations on the use of property must be in accordance with the public or general interest, by enforcing such laws as they deem necessary for the purpose. Therefore, any such law providing for restriction of the right to property (public or private) must be stipulated with sufficient clarity as stated by the African Court in Application No. 004/2013 – Lohé Issa Konaté v. Burkina Faso (2014) AFCHPR judgement, para 128.
In conclusion, the right to political participation and the right to access public property is an inalienable right and it can only be restricted under such circumstances as clearly and amply stipulated by the law. As such a state cannot escape this international obligation by making reference to it national laws.
