Nairobi, 1981: The African Charter on Human and Peoples' Rights
On 27 June 1981, at its eighteenth meeting in Nairobi, Kenya, the Assembly of the Heads of State and Government of the Organization of African Unity (OAU) unanimously adopted the African Charter on Human and Peoples’ Rights. The document, also known as Banjul Charter, formed the basis for the establishment of a regional human rights regime. With the adoption of the charter, and after decades in which the principle of non-interference dominated the work of the OAU, African states acknowledged for the first time that human rights violations were a matter for the international community. Not only did the Charter mark an important milestone in the history of human rights in Africa, it also became a unique human rights instrument in the setting of international norms and standards.
The idea of an African human rights system was first articulated at a congress of African lawyers in Lagos in 1961. The congress adopted a declaration known as the "Law of Lagos", which called on African states to adopt an African Convention on Human Rights. This call went unheard. The leaders of the African states, many of which only recently gained their independence, turned their attention to issues of national sovereignty and political independence – an attitude that has shaped the orientation of the OAU since its founding in 1963. While the OAU Charter reaffirmed the principles of the UN Charter and the 1948 Universal Declaration of Human Rights, it did not include any instruments for the protection of human rights. Instead, the charter's most significant provisions related to the promotion of African unity, the defense of sovereignty, territorial integrity and independence, and the elimination of all forms of colonialism in Africa. While African leaders had referred to human rights in their criticism of colonial domination in the 1940s and 1950s, the emerging post-colonial states of the 1960s increasingly instrumentalized the imperative of non-interference to reject international criticism of human rights violations as inadmissible interference in internal affairs. The OAU, meanwhile, largely ignored even serious violations.
In the 1970s, however, the organization gradually began to consider the need for a regional system of human rights protection. The fact that this was increasingly being debated within the OAU can be explained by developments at three levels. First, human rights increased considerably in importance throughout the world during the decade. The adoption of the Helsinki Final Act in 1975 and the reorientation of American foreign policy under the presidency of Jimmy Carter (1977-81) resulted in human rights rhetoric becoming a more integral part of international relations. At the same time, the atrocities committed by the Pol Pot regime in Cambodia and the fate of the Vietnamese “boat people” received worldwide media attention. Further, the activities of NGOs such as Amnesty International, which was awarded the Nobel Peace Prize in 1977, contributed to an increased public awareness of human rights violations. The intensified interest in human rights led to increasing international criticism of African regimes and the OAU. At the same time, the emerging global human rights talk also influenced African intellectuals and experts on the ground.
The second development leading up to Nairobi was the UN’s encouragement of the establishment of human rights regimes in regions where they did not exist. In this context, an initiative by Nigeria, which had already urged the establishment of an African commission at the Human Rights Conference in Tehran in 1968, led to the organization of a “Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa” (UN Document ST/TAO/HR/38). This seminar, held in Cairo in 1969, was the first in a series of three UN conferences held in Africa. While the conferences were devoted to the “technical” aspects of establishing a Human Rights Commission, the meeting in 1973 in Dar es Salaam, Tanzania was influenced by the debates about the New International Economic Order. As a result, the issue of development dominated these ideologically charged debates. During the final conference in Monrovia, Liberia in 1979, the change in the international climate was apparent. The previous heated debates became more practical again, and numerous African delegations expressed their support for the idea of establishing an African system of human rights protection. Encouraged by these developments, the conference determined the moment was right for establishing such a system and urged the earliest possible drafting of a human rights charter. The efforts of the UN had not only kept alive the discussions about a regional human rights system among African experts and intellectuals, they also had a direct impact in 1979. The OAU now understood the issue of human rights to be a matter of pressing concern.
Thirdly, intra-African events proved to be the decisive factor in this change of attitude on the part of the OAU. Largescale killings and gross violations of human rights by the regimes of Idi Amin in Uganda, Macias Nguema in Equatorial Guinea, and Jean-Bédel Bokassa in the Central African Empire caused fierce reactions inside and outside of Africa and threatened the reputation of the OAU. The swelling international criticism led to an increasing questioning of the primacy of the principle of non-interference within the organization. However, the main reason why the 16th OAU summit held in Monrovia in 1979 focused on human rights was the successful invasion of Uganda by troops from neighboring Tanzania and the subsequent disempowerment of Idi Amin. Not least in order to end the controversial debates that flared up in the organization and to restore the international reputation of the organization, the participants decided to “prepare a preliminary draft of an 'African Charter on Human and Peoples' Rights' providing inter alia for the establishment of bodies to promote and protect human and peoples' rights,” (AHG/Dec.115 (XVI) Rev. 1 1979) as soon as possible.
In 1979, the same year as the Monrovia Summit, a conference with twenty African experts under the chairmanship of the Senegalese judge Kéba M'Baye was held in Dakar, Senegal. The opening speech of the Senegalese President, Leopold Senghor, deeply influenced the work of the Commission. Senghor emphasized the importance of taking African values and traditions into account for an African Charter of Human Rights, because, in his opinion, African needs should be met on the basis of African philosophy. This approach was consistently reflected during the preparation of the first draft and had a lasting impact on the elaboration of the African Charter of Human Rights and Peoples' Rights. However, since numerous governments continued to resist the establishment of a regional human rights system, it was not possible to hold a scheduled second meeting in Ethiopia to adopt the draft charter. In view of this tense situation, the President of the Gambia convened two ministerial meetings in the capital Banjul, at which the draft was ultimately adopted and submitted to the OAU Assembly. Because of this extraordinary role of Gambia, the charter is also referred to as the Banjul Charter. Considering the immense reservations against a human rights protection system, the adoption of the Charter was surprisingly carried out relatively quickly. On 27 June 1981, only two years after the completion of the first draft, the Assembly of Heads of State and Government of the OAU adopted the charter, which entered into force on 21 October 1986.
The legal content of the Banjul Charter reflected the events and ideological developments leading up to its adoption in 1981. While it guarantees civil and political rights as well as economic, social, and cultural rights frequently seen in other human rights regimes, it also contains unique elements. Senghor's demand for the inclusion of African philosophy was manifested in the articulation of individual duties as an expression of a specifically African communalistic understanding of society. While human rights usually impose obligations on states, the Banjul Charter recognizes duties of the individual to the family, society, state, and the international community.
In addition, the Banjul Charter reflects the current state of contemporary international human rights debates. Thus, the provisions on the rights of peoples not only contain established collective rights such as the right to self-determination, they also include a number of so-called solidarity rights. This concept, which was shaped by Karel Vasak, director of the UNESCO Department for Human Rights and Peace, has only been discussed in UN bodies since the late 1970s. The Charter was the first (and so far only) regional human rights instrument to guarantee the Right to Development that was first conceived as a human right by Kéba M'Baye in 1972 and adopted by the UN General Assembly in 1986 – five years after the adoption of the Banjul Charter. But other rights of solidarity, such as the right to a satisfactory environment or the right to national and international peace and security, were also included in the Charter. A constitutive element of these rights is that they require measures from the international community. This results in another unique feature of the Charter, whose provisions extend beyond its actual scope. The inclusion of the non-African world and the implicit call for international solidarity to remove obstacles to development is a result of the North-South conflict, which intensified in the 1970s. It is flanked by another reference to non-African powers. In the face of the historical trauma of colonial oppression and exploitation, the Charter explicitly condemns all forms of colonialism, neo-colonialism and racism.
Since its adoption, the Charter, along with the African human rights regime, has often been criticized as ineffective and based on unenforceable principles. However, the history of the document’s creation reflected the experiences of postcolonial Africa, while the document itself made a significant contribution to the evolution of international human rights law.
This entry is based on source material as well as on relevant research literature. The following works represent some major analyses of the genesis and normative content of the Banjul Charter. They also illustrate that research on the African human rights regime is primarily carried out in the fields of international law and political science, while historians show surprisingly little interest in it. Therefore, significant studies on legal and institutional aspects as well as on the regional peculiarities of the Charter have been carried out, but a systematic historical study still remains to be written.
- The African Charter on Human and Peoples' Rights: The System in Practice, 1986-2000, edited by Malcolm Evans and Rachel Murray (Cambridge: Cambridge University Press, 2008).
- Mugwanya, George W. Human rights in Africa: Enhancing Human Rights Through the African Regional Human Rights System (Ardsley: Transnational Publishers, 2003).
- Murray, Rachel The African Charter on Human and Peoples' Rights. A Commentary (Oxford: Oxford University Press, 2019).
- Murray, Rachel Human Rights in Africa: From the OAU to the African Union (Cambridge: Cambridge University Press, 2004).
- Mutua, Makau. ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’. Virginia Journal of International Law 35 (1995): pp. 339 – 380.
- Ouguergouz, Fatsah The African Charter of Human and Peoples' Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff Publishers, 2003).
- Viljoen, Frans. ‘Human Rights in Africa: Normative, Institutional and Functional Complementarity and Distinctiveness’. South African Journal of International Affairs 18, no. 2 (2011): pp. 191 – 216.
- Viljoen, Frans. International Human Rights Law in Africa (Oxford: Oxford University Press, 2012).
- Human Rights and Development in Africa, edited by Claude E. Welch, Jr. and Ronald I. Meltzer (Albany: State University of New York Press, 1984).
Short Biographical Note on Contributor
Christoph Plath studied history and philosophy at Universität Potsdam and Freie Universität Berlin. He started his dissertation project Contested Utopia. Collective Rights and the Conflictual Universalization of Human Rights, 1972-1986 in 2016 and since 2017 he is associated fellow of the Graduate School “Global Intellectual History” at Freie Universität Berlin. Christoph specializes in the history of human rights and his broader research interests include global intellectual history, history of international relations and digital humanities. Beside his research activities, he is a member of the editorial staff of Zeitgeschichte-online since 2014. Christoph was a participant of the Global Humanitarianism Research Academy 2018.