Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Although the Charter provides for and guarantees the right to liberty and security of the person, one of the notable features of article 6 is that it contains a significant clawback clause: “No one may be deprived of his freedom except for reasons and conditions previously laid down by law.”
The Commission has also established, in the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, regarding the right to liberty and security of the person, that:
“States must ensure that no one shall be subject to arbitrary arrest or detention and arrest… detention or imprisonment shall only be carried out strictly in accordance with the law…pursuant to a warrant, on reasonable suspicion or for probable cause.”
Article 6 allows States some room to carry out arrests and detentions pursuant to existing national laws, but it does not provide States with the right to create laws that completely eradicate the right to liberty or to, by conduct, fail to give life to domestic laws that protect this freedom.
As the Commission noted, in Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria:
“this does not, however, mean that national law can set aside the right to express and disseminate one’s opinions [which is] guaranteed at the international level… to permit national law to take precedence over international law would defeat the purpose of codifying certain rights in international law and indeed, the whole essence of treaty-making.”
Additionally, the Commission has held, in Amnesty International v Zambia (1999) ACHPR, that:
“clawback clauses must not be interpreted against the principles of the African Charter [and that] recourse to these should not be used as a means of giving credence to violations of the express provisions of the African Charter.”
The conclusion therefore is that States retain the right to arrest and detain violators of their national laws, however, such restrictions of the right to liberty must not be done arbitrarily. The Commission has helped clarify what would qualify as an arbitrary deprivation of the right to liberty in several of its recommendations.
In deciding this question, in Constitutional Rights Project and Another v. Nigeria, the Commission held that the Charter should be interpreted with cultural sensitivity, holding that the traditional importance of the right to habeas corpus of Common Law countries made it important for Nigeria to recognize it.
In other decisions, such as in IHRDA v. Angola and in Media Rights Agenda v. Nigeria, the Commission has made clear that any detention or arrest made without charge would constitute a violation of article 6.
