My name is Refule Chulu and I'm a master human rights student at FAU.
Today I will present a summary of research on potential human rights
hoarders under the African human rights system.
The Banjul Charter reflects the African philosophy of human rights which is centered around the role
of the individual within a community as well as the equality of peoples. It explicitly protects
collective or group rights of peoples as such as well as those of more specific communities,
for example indigenous people. Unlike the human rights instruments developed by the United Nations
and other regional systems, the African Charter expressly recognizes and protects collective
rights. It uses the term peoples in its provisions including the preamble. Right from the beginning,
the instrument was meant to protect collective rights. The governing principle guiding the
preliminary draft was that the African Charter must reflect the African conception of human
rights, reflecting the African philosophy of law and meeting the needs of Africa. The principle
of people's equality was asserted. It is opposed to every attempt by one people to dominate another,
no matter the importance attached to it. The African human rights system will continue
protecting collective rights. The African Commission makes a distinction between people
as an entire people of a country as a collective, specific group of population within a state
considering themselves as distinct and indigenous people. The term indigenous is also not intended
to create a special class of citizens, but rather to address the historical present-day injustices
and inequalities. In the context of the African Charter, the working group notes that the notion
of peoples is closely related to collective rights. Now we look at case law that deals with the people
as human rights holders. In Malawi African Association and Others vs Mauritania, the
Commission did not find a violation of their right to equality, but found violations of Articles 2,
12 subsection 1, 14, 16 and 17 of the African Charter. It identified Black Mauritanians as a
specific group of the population within a state whose rights could potentially have been violated.
At the heart of the abuses alleged in the different communications is the question of
the domination of one section of the population by another. The resultant discrimination against
Black Mauritanians is the result of a negation of the fundamental principle of the equality
of peoples as stipulated in the African Charter and constitutes a violation of its Article 19.
The Commission must however admit that the information made available to it did not allow
it to establish with certainty that there was a violation of Article 19 of the Charter along
the lines alleged here. It was nevertheless identified and condemned the existence of
discriminatory practices against certain sectors of the Mauritanian population.
In Legal Resources Foundation vs Zambia, the complainant alleged that the Zambian
government had enacted into law a constitution which was discriminatory, divisive and violated
the human rights of 35% of the entire population. The Commission held that the right to non-discrimination,
which is Article 2, was violated, but recourse to the right of equality, Article 19, was mistaken,
providing a positive definition of peoples in this context. The Charter makes it clear that
citizens should have the right to participate in the government of their country directly or
through freely chosen representatives. The pain in such an instance is caused not just to citizens
who suffer discrimination by reason of place of origin, but that the rights to the citizens of
Zambia to freely choose political representatives of their choice is violated.
In Centre for Minority Rights Development Kenya and Minority Group Rights International on behalf
of Andorra's Welfare Council vs Kenya, the Commission recognized the Indigenous peoples'
rights over traditionally owned land and their right to development under the African Charter.
It named criteria for the definition of Indigenous peoples. It is clear that all attempts to define
the concept of Indigenous peoples recognize the linkages between peoples, their land and culture
and that such a group expresses its desire to be identified as a people or have the consciousness
that they are people. Now we look at companies as authors of communications. Legal persons can
submit communications to the Commission pursuant Rule 93 Caesar of the Communication. The African
Commission has adopted an actio popularis approach where the author of a communication did not know
or have any relationship with the victim. This is to enable poor victims of human rights violations
on the continent to receive assistance from NGOs and individuals far removed from their locality.
All the author needs to do is to comply with the requirement of Article 56. The African Commission
has thus allowed many communications from authors acting on behalf of victims of human rights
violations. One implicit requirement under Article 65 subsection 1 is that the author must be a
person in order to have standing. Thus a complaint may be brought by either a natural person or a
juridical person. It is tried law that duties and rights only accrue to juridical persons if they
are recognized by law. Now we look at companies as victims. In contrast to its wide approach
concerning the authors of communications, the case law on the Commission on legal persons as
holders of human rights of their own is an open to interpretation. The African Commission has found
violations of human rights in several cases, often leaving open however, whether rights of a company
itself or other persons concerned were violated. The Commission has thus left room for the
assumption that while legal persons may not be primarily protected in their own right,
they may be instrumentalized to protect affected human beings. And this is seen in several case
law namely Civil Liberties Organization versus Nigeria, Communication 101 of 93 and 129 of 94,
Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda versus
Nigeria and Article 19 versus State of Eritrea. In conclusion the African human rights approach
has led to the development of extensive case law and a catalogue of rights under the African
Charter that people as collectives can hold. It is clear that legal persons can submit
communications to the Commission. What is unclear is whether companies can hold
corporate human rights of their own.