The African Charter on Human and Peoples' Rights (Banjul Charter) Explained

The African Charter on Human and Peoples' Rights, often called the Banjul Charter, is Africa's main human rights treaty. It was adopted by the Assembly of Heads of State and Government of the Organisation of African Unity in Nairobi in June 1981 and entered into force on 21 October 1986. It protects the familiar rights of individuals, but it also recognises rights held by whole peoples and sets out duties that individuals owe to their families, communities and states. Two bodies apply it: the African Commission on Human and Peoples' Rights, based in Banjul, The Gambia, and the African Court on Human and Peoples' Rights in Arusha, Tanzania.

Key facts

Item	Detail
Adopted	June 1981, Nairobi, Kenya, by the 18th Assembly of OAU heads of state and government
In force	21 October 1986, now marked as African Human Rights Day
Ratifications	53 states as of 2019
Supervisory body	African Commission on Human and Peoples' Rights, inaugurated 2 November 1987
Court	African Court on Human and Peoples' Rights, whose protocol came into force on 25 January 2004

What rights the Charter protects

Individual rights

Articles 2 to 18 cover the rights of the individual. They begin with non-discrimination and equality before the law, and include:

• the right to life and to respect for dignity, with a ban on slavery, torture and degrading treatment;
• liberty and security, and protection against arbitrary arrest;
• a fair hearing, including the presumption of innocence and trial within a reasonable time;
• freedom of conscience and religion, of expression, of association and of assembly;
• freedom of movement and the right to seek asylum;
• the right of every citizen "to participate freely in the government of his country", and equal access to public service;
• property, work in fair conditions, health and education;
• protection of the family, and of the rights of women, children, older people and disabled people.

The Charter places economic, social and cultural rights, such as work, health and education, in the same document as civil and political rights.

Several rights are qualified by references to national law. Article 9, for example, gives every individual the right to express and spread opinions "within the law", and freedom of religion is subject to law and order.

Peoples' rights

The Charter's most distinctive feature is the set of rights that belong to peoples rather than individuals, in Articles 19 to 24:

• equality of all peoples, with no people dominated by another;
• the right to existence and to self-determination;
• the right to dispose freely of their wealth and natural resources;
• the right to economic, social and cultural development;
• the right to national and international peace and security;
• the right to "a general satisfactory environment favourable to their development".

The Commission has used these provisions in practice. In a 2001 decision concerning Nigeria, known as the SERAC case, it also read rights to housing and food into the Charter.

Duties

The Charter also lists duties of the individual. Article 27 says that every individual has duties towards the family and society, the state and other legally recognised communities, and that rights must be exercised with due regard to the rights of others, collective security, morality and common interest. Article 28 adds a duty to respect others without discrimination. Article 29 lists further duties, such as preserving the cohesion of the family, serving the national community, strengthening national solidarity and contributing to African unity.

The African Commission on Human and Peoples' Rights

The Charter created the Commission to promote and protect human and peoples' rights. It was inaugurated on 2 November 1987 in Addis Ababa, and its secretariat later moved to Banjul. It is now an organ of the African Union.

The Commission has eleven members, chosen from African personalities known for their high morality, integrity, impartiality and competence. They serve in a personal capacity, not as representatives of their governments, and are elected by the AU Assembly for six-year terms that can be renewed. Its main functions are to promote the Charter, to protect the rights in it and to interpret it.

It works in three main ways:

• State reports. Each state party undertakes to submit a report every two years on the laws and other measures it has taken to give effect to the Charter.
• Complaints from states. One state party can bring a complaint that another has violated the Charter.
• Other communications. Individuals and organisations can also submit complaints. These must identify their authors, even if the author asks for anonymity, and must not be based only on news reports. Where complaints reveal serious or massive violations, the Commission can draw them to the attention of the AU Assembly.

When interpreting the Charter, the Commission is told to draw on international human rights law, including the UN Charter and the Universal Declaration of Human Rights.

The African Court on Human and Peoples' Rights

A protocol to the Charter adopted in 1998 created the African Court on Human and Peoples' Rights. It came into force on 25 January 2004, after more than 15 countries had ratified it. The Court sits in Arusha, Tanzania. It has eleven judges, nominated by AU member states and elected by the Assembly for six-year terms, renewable once.

The Court is meant to complement and reinforce the work of the Commission. Only states that have ratified the protocol fall under its jurisdiction, and individuals and non-governmental organisations can bring cases directly only against states that have made an extra declaration accepting this. Otherwise, cases go to the Commission, which decides whether to refer them to the Court. The number of states accepting direct access has changed over time, as some have made the declaration and others have withdrawn it.

A 2008 protocol would merge the Court with the African Court of Justice to form an African Court of Justice and Human Rights. As of June 2020 it had eight of the 15 ratifications it needs to take effect.

Why it matters

The Charter is the reference point for human rights across the AU. The Constitutive Act names the promotion of rights "in accordance with" the Charter among the Union's objectives, and later instruments, such as the African Charter on Democracy, Elections and Governance, build on it. Its guarantee of political participation, in Article 13, is the right most directly connected with elections.