The African Charter on Human and Peoples’ Rights (the African Charter) is one of among the few legal instruments in which the right to property (Article 14) is distinctly separated from the right to freely dispose of one’s wealth and natural resources (Article 21), and the right to economic, social and cultural development (Article 22). This is expedient because it obviates the need to read into an article a concept not contemplated by the drafters or one which has to be logically deduced from one particle article and read into another. For example, a violation of Article 22 significantly impacts other substantive rights under the African Charter; thus constituting secondary violations of Article 21 and other provisions. However, it does not necessarily mean that an alleged violation must be read into another article.
It is interesting to note that the vagueness deployed by the drafters of the African Charter provides room for flexibility which the Commission can exploit in developing its jurisprudence on human rights based on the petitions and communications receive from or against a state party to the African Charter. For example, The American Convention on Human Rights does not have an equivalent of the African Charter’s Article 21 on the right to natural resources. “It therefore reads the right to natural resources into the right to property (Article 21 of the American Convention)…” 276/03 : Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya para 256. In fact even the United Nations Universal Declaration of Human Rights 1948 only provides for the right to property in Article 17 (2) thus: “No one shall be arbitrarily deprived of his property.”
Article 21
1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.
5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation, particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
GENESIS OF ARTICLE 21
The Commission in its earlier decisions recalls its jurisprudence which tracked the genesis of this article (Article 21) to the African colonial era when human and material resources in Africa were exploited for the benefit of powers from outside the continent. “The origin of this provision may be traced to colonialism, during which the human and material resources of Africa were largely exploited for the benefit of outside powers, creating tragedy for Africans themselves, depriving them of their birthright and alienating them from the land,” 155/96: Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria para 56.
However, the Commission has also held that the rights in Article 21 of the Charter are “still applicable in post-colonial Africa in favour of groups within states to the extent that it triggers an obligation on the part of the State Parties to protect their citizens from exploitation by external economic powers and to ensure that groups and communities, directly or through their representatives, are involved in decisions relating to the disposal of their wealth, Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola para 129. Nevertheless, the Commission also recognises the right of State Parties to supervise the disposal of wealth in the general interest of the state and its communities, 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya PARA 268.
JURISPRUDENCE OF THE COMMISSION
In jurisprudence from the Commission in which it addresses this right, the Commission has found that the natural resources protected under Article 21 are those “necessary for … survival [and] development,” Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, 4 February 2010, para. 261. The Inter-American Court of Human Rights, whose jurisprudence the African Commission and African Court have adopted, also recognizes the close tie between natural resources, development and survival, Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March 29, 2006, para. 118.
Also, every person has the right to freely dispose of their natural resources associated with their land; primarily the produce traditionally grown on the land. The African Commission has previously found a violation of Article 21 in the “deprivation of the right to enjoy and freely dispose” of the produce associated with an individual or communities’ land, African Commission on Human and Peoples’ Rights v Republic of Kenya, Judgment, Application No. 006/2012, 26 May 2017, para. 201. This right is integrally linked with the right to property, as demonstrated in the American Convention which “reads the right to natural resources into the right to property,” African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, 4 February 2010, para. 256.
However, the right to wealth and natural resources does not necessarily mean each person individually or in consort with other has an unhindered right to squander such property without any form of legally justifiable restrictions. For example, in the landmark judgment of Velàsquez Rodrígeuz (sic) case, judgment of July 19 1988, Series C No.4, the Inter-American Court of Human Rights held that when a “state allows private persons or groups to act freely and with impunity to the detriment of the rights recognised, it would be in clear violation of its obligations to protect the human rights of its citizens.” Accordingly, each government has a duty to protect its citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties, 155/96: Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria para 58.
Similarly, the Commission found Nigeria to be in violation of Article 21 simply because of the fact that “by any measure of standards, its practice falls short of the minimum conduct expected of governments,” in safeguarding the right enshrined in Article 21. 155/96: Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria para 58. Accordingly, the Commission found the illegal exploitation/looting of the natural resources of the Republic of Congo by Burundi, Rwanda and Ugandain contravention of Article 21 (1) of the African Charter, which provides: “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it…”227/99 Democratic Republic of Congo / Burundi, Rwanda, Uganda para 94
The Commission has held that communities have a right to freely dispose of their wealth and natural resources in consultation with the State. Thus failure of a State to provide adequate compensation or restitution of natural resources of a particular community could constitute a violation of Article 21 of the Charter, 276/03: Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya.
Nevertheless, it is important to note that the African Charter does not provide a definition of the concept of ‘people’ that is found in Articles 19 to 24. This concept nonetheless defines third generation rights whose recognition constitutes the main distinctive feature of the African Charter. Article 21 of the Charter is one of these rights; it guarantees to all peoples the right to freely dispose of their wealth and natural resources. Under the terms of this Article, a people stripped of their wealth and natural resources have the right to the recovery of its property and to an adequate compensation as stated above in Communication 276/03.
In conclusion, considering its nature and its objective, this Article can only be referred to in the exclusive interest of a people that has the legitimate right to an adequate compensation as well as to the recovery of its assets in case of spoliation, 253/02 Antonie Bissangou / Congo no violation of 21 (2). In essence, all persons within a state are entitled to the protection of this fundamental right and the enjoyment that naturally follows such protection.
