Author(s): Dr. Onyeka Williams Igwe
Affiliated organization: Rivers State University of Science and Technology Nkpolu-Oroworukwo
Type of publication: academic article
Date of publication: November 2014
With Africa’s abhorrent record on human rights violations including slavery and slave trade, colonialism, apartheid, military and dictatorial regimes (some associated with looting the national treasuries of their States), there was an urgent need, even pressure, both from within and outside the continent, for an African Human Rights Charter. Agitations were even stirred at the UN level in the same direction.
Concerned with this need, there was the Pan – African collaboration on human rights as initiated by the International Commission of Jurists which organized a conference of jurists in Lagos. “The Laws of Lagos” was a consequence of this conference. It contained inter alia a demand for an African Human Rights Charter complemented with a human rights court. It was President Sedar Senghor of Senegal who secured the resolution of the OAU to direct the Secretary-General of the OAU to set the machinery in motion for an African Charter. It was incorporated into Nigerian Law as the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act 2.
Having suspended Chapter 4 of the 1979 Constitution, the military regimes of Ibrahim Babanginda and Sani Abacha felt unlimited to further violate the human rights of Nigerians. But with the aid of the African Charter which Nigeria had domesticated, thus, becoming part of the domestic law, the violated became legally emboldened to challenge the violations of their human rights which the Nigerian Military Governments had frustrated through the regime of ouster clauses to neutralize and incapacitate.
Rights not expressly provided/defined by the Charter
Definition of “Peoples”
Despite making references to “peoples”, the African Charter did not define it. The clarification of this expression, especially in the context of the African Charter is crucial, more so, given the seeming ambiguity created in Article 21 of the Charter. Paragraph 1 of Article 21 refers to the rights of ‘all peoples’ to freely dispose of their wealth and natural resources, but paragraph 4 refers to: “The right of States parties to the prevent Charter” to exercise the right to freely dispose of their wealth and natural resources. James Crawford observed that “what was originally treated as a right of peoples is here treated as a right of States, thus casting doubt upon the legitimacy of the assertion that peoples have a right to permanent sovereignty over their natural resources”.
Really, the absence of a definition may allow the term “people” to be interpreted in an expansive and imaginative manner, it is hard to escape the inference that the lack of definition of ‘peoples’ in the African Charter, despite its full entrenchment, may have been influenced by political considerations. James Crawford had argued that given its entrenchment in human rights treaties such as the ICESCR [The International Covenant on Economic, Social and Cultural Rights], “the precedent for treating questions of permanent sovereignty over natural resources as rights of peoples’, rather than as rights of States, is an established one”.
Further, he argues that the principle of permanent sovereignty over natural resources has the capacity of operating as a guarantee of peoples against their own governments, thus limiting the capacity of governments in the interest of the community. His view which we feel is compelling is that Article 21 of the African Charter makes a state’s natural resources policy binding in the African Commission.
With the aid of the African Charter which Nigeria had domesticated, thus, becoming part of the domestic law, the violated became legally emboldened to challenge the violations of their human rights
Although the Commission did not define the term “people” in the Ogoni Case, it found that the right of the Ogoni people to dispose of their wealth and natural resources, among others, had been violated, thereby implicitly recognizing that the Ogoni local population are “people” within the context of the African Charter.
Indeed, the African Commission has provided further conceptual clarifications of “people” in the context of the African Charter. In the said case involving Nigeria, the Commission found the country to have breached its obligation to respect, protect, promote and fulfil rights guaranteed by the Charter, and held Nigeria to be in violation of several rights in the Charter, including the right to freely dispose of their wealth and natural resources.
The facts of the case are that the petitioners alleged that the operations of the Nigeria military government through its state oil company, the Nigerian National Petroleum Company (NNPC) as majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC) had caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people. Also alleged by the petitioners is that the consortium disposed of toxic waste in violation of applicable environmental standards and caused numerous avoidable spills near villages, consequently poisoning much of the region’s soil and water.
The lack of definition of ‘peoples’ in the African Charter […] may have been influenced by political considerations
Further, the petitioners alleged that the Government aided these violations by placing the state’s legal and military powers at the disposal of the oil companies; and that the Government, through its security forces, killed innocent civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals. Finally, the petitioners alleged that the Government failed to monitor the activities of the oil companies, provided no information to local communities, conducted no environmental impact studies, and prevented scientists from undertaking independent assessments.
While holding that Nigeria has the right to produce oil, the Commission nonetheless held that the country had not protected several rights contained in the Charter, including the right of the people freely to dispose of their natural wealth and resources. The Commission also held that the lack of involvement of the Ogoni people in the decisions that affect them constitutes a violation of Article 21, and asked the Nigerian Government to ensure adequate compensation for victims of violations.
The African Charter does not contain the right to adequate food, and freedom from hunger and malnutrition; but the mandate of the African Commission under the Charter, including Articles 60 and 61, may be interpreted generously to accommodate some elements of these rights. The Commission has in fact read the right to food into the Charter provisions on the right to life guaranteed in Article 4 and the right to health in Article 16.
Article 21 of the African Charter makes a state’s natural resources policy binding in the African Commission
In the learned view of the Commission, the right to food is “inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights such as health, education, work and political participation”.
The Commission therefore held that the treatment of the Ogoni people by the Nigerian government in that case violated the minimum duties that it had towards ensuring the right to food through destroying food sources; allowing private oil companies to destroy food sources, and creating significant obstacles in the ability of the peoples to feed themselves.
The right to housing is not expressly provided for in the African Charter. Notwithstanding this lacuna, the African Commission has upheld a right to housing, including subsidies and tax incentives to expand housing construction to meet the needs of all categories of the population, particularly low income families; the use of scientific and technical knowledge and of international cooperation for developing and improving housing construction, including safety measures against earthquakes, floods and other natural hazards; special problems of housing, water supply and sanitary conditions in rural areas; the protection of tenants, such as rent control and legal guarantees. Further, the Commission has interpreted housing needs in relation to women as involving an obligation upon state to provide the right to equal access to housing and to acceptable living conditions in a healthy environment.
While holding that Nigeria has the right to produce oil, the Commission nonetheless held that the country had not protected several rights contained in the Charter, including the right of the people freely to dispose of their natural wealth and resources
In the Ogoni case, the Commission underscored two fundamental elements in the realization of the right to housing: The prohibition on state parties not to destroy houses and not to obstruct efforts by individuals and communities to rebuild lost homes. Accordingly, “the right to housing goes beyond having a roof over ones head. It extends to embody the individual’s right to be let alone and live in peace whether under a roof or not”. Therefore, States and their agents must not engage in any act that obstructs the enjoyment of the core contents of the right to housing.
The Issue of Domesticating the African Charter Holus Bolus
The ideal practice is for states to provide the legal platform necessary to realize legal obligations undertaken at the international level. In the case of human rights, states are the primary custodians of the human rights of their citizens. As a general rule international law does not directly apply to domestic legal instruments of states. The level of enforcement of international rules on the domestic legal plane of states is largely dependent on the viability of the receptacle available domestically. This is largely due to the fact that domestic courts are bound to respect and apply domestic law. This is the case even where the state has domesticated the international law in issue.
The Commission has in fact read the right to food into the Charter provisions on the right to life guaranteed in Article 4 and the right to health in Article 16
Nigeria domesticated the African Charter on Human and Peoples’ Rights holus bolus, i.e., completely and wholly without respect to her internal legal structure that is not yet suited to enforce all the rights enshrined in the said charter. The regime of the civil and political (CP) rights in Nigeria is enforceable through a special provision in section 46 of the 1999 Constitution which is a direct reflection of section 42 of 1979 Constitution.
It provides that “any person who alleges that any of the provisions of the chapter has been, is being or likely to be contravened in any state, in relation to him may apply to a High Court in that state for redress”. In realizing this provision, the then Chief Justice of Nigeria, Justice Fatayi Williams, on the 5th of December, 1979, in a supplement to the Official Gazette No. 64, volume 66, made the Fundamental Rights (Enforcement Procedure) Rules.
Also, on 11th November, 2009, the Former Chief Justice of Nigeria Idris Legbo Kutigi, replicated the same act in a supplement of Official Gazette No. 74 Volume 46. As the name suggests the rules apply to what was considered as fundamental rights as against the general notion of Human Rights. The rules restrictively apply to civil and political rights as captured in Chapter IV, section 33-46, of the 1999 Constitution. The Economic, Social and Cultural (ESC) rights and some of the solidarity rights are captured in Chapter II, sections 13-24 of the 1999 Constitution. The Constitution clustered them as fundamental objectives and directive principles of state policy.
The right to housing goes beyond having a roof over ones head. It extends to embody the individual’s right to be let alone and live in peace
This nomenclature took away the ‘rights’ content from these human rights and made them non-justifiable, unlike the Chapter IV rights that can be enforced through a special procedure. The ordinary legal impression created by this classification with respect to the charter rights is simply that the civil and political rights automatically assume the legal status of Chapter IV rights in the 1999 Constitution. Every other right outside the civil and political rights automatically assumes the legal status of Chapter II, rights, meaning that legally they are non-binding.
This discriminatory disposition of the 1999 Constitution with respect to the rights enshrined in the charter which has not only been ratified but additionally domesticated defeats the whole essence of the regime of rights procured by the African Charter.
The level of enforcement of international rules on the domestic legal plane of states is largely dependent on the viability of the receptacle available domestically
The protection and respect for human rights is too precious to be relegated to the dust bin of ‘fundamental objectives and directive principles of state policy’. Human rights are strictly interwoven; an attempt to protect only the regime of civil and political rights will even make its realization difficult. The best approach is the holistic one. For instance, securing the CP right to life is meaningless in the face of the violation to the rights to food, shelter, medical care, etc.
Nigeria scored cheap political points by merely ratifying and domesticating the African charter without creating a legal environment for guaranteeing the protection of economic, social, cultural and solidarity rights. The African Charter made bold statements with respect to the legal status of human rights internationally. A state that has domesticated it has sent strong signals that she is willing to respect the rights enshrined in the instrument. She receives international accolade, for such gesture. Such state should reciprocally show strong willingness to discharge its international obligations by ensuring respect for these rights.
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