The African system: the Banjul Charter, Commission and Court - Human Rights Law and Practice

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1. Background
2. Individual rights: Articles 2 to 18
3. Peoples rights: Articles 19 to 24
4. Duties: Articles 27 to 29
5. The African Commission on Human and Peoples Rights
6. The three procedures for implementation
7. The African Court on Human and Peoples Rights
8. Leading decisions
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The African Charter is distinctive in three ways, and every answer should say so: it protects peoples’ rights as well as individual rights, it imposes duties on individuals, and it places civil, political, economic and social rights in one binding text. The questions ask for the rights, the duties, the Commission, or “the three main procedures for implementation”.

1. Background

The African Charter on Human and Peoples’ Rights (the Banjul Charter) was adopted by the Organisation of African Unity at Nairobi on 27 June 1981 and came into force on 21 October 1986. All member states of the African Union except Morocco are parties. The OAU was replaced by the African Union in 2002 (Constitutive Act, 2000). The Charter draws on African traditions of community and on the struggle against colonialism and apartheid, which explains its stress on peoples and duties.

2. Individual rights: Articles 2 to 18

Non-discrimination (Art. 2) and equality before the law (Art. 3).
Inviolability of the human being and the right to life (Art. 4); dignity and prohibition of slavery, torture and cruel, inhuman or degrading treatment (Art. 5).
Liberty and security (Art. 6); the right to have one’s cause heard, including the presumption of innocence and defence by counsel (Art. 7).
Conscience and religion (Art. 8); to receive information and express opinions (Art. 9); association (Art. 10); assembly (Art. 11); movement, asylum and protection against mass expulsion of non-nationals (Art. 12); participation in government (Art. 13); property (Art. 14).
Economic and social rights: work under equitable conditions and equal pay (Art. 15), the best attainable state of physical and mental health (Art. 16), education and cultural life (Art. 17), and protection of the family, women, children, the aged and the disabled (Art. 18).

3. Peoples’ rights: Articles 19 to 24

Art. 19 — all peoples are equal; nothing justifies domination of one people by another.
Art. 20 — the right to existence and self-determination; colonised or oppressed peoples may free themselves by any means recognised by the international community.
Art. 21 — the right freely to dispose of their wealth and natural resources, in the exclusive interest of the people, and to recover dispossessed property.
Art. 22 — the right to economic, social and cultural development.
Art. 23 — the right to national and international peace and security.
Art. 24 — the right to a general satisfactory environment favourable to their development.

This was the first binding treaty to recognise the right to development and to a healthy environment.

4. Duties: Articles 27 to 29

Article 27(1): every individual has duties towards his family and society, the State and other legally recognised communities, and the international community. Article 27(2): rights shall be exercised with due regard to the rights of others, collective security, morality and common interest. Article 28: a duty to respect and consider fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

Article 29 lists eight further duties:

(1) to preserve the harmonious development of the family, to respect parents at all times and to maintain them in case of need;
(2) to serve the national community by placing one’s physical and intellectual abilities at its service;
(3) not to compromise the security of the State of which one is a national or resident;
(4) to preserve and strengthen social and national solidarity;
(5) to preserve and strengthen national independence and territorial integrity and to contribute to the defence of the country;
(6) to work to the best of one’s abilities and to pay taxes imposed by law in the interest of society;
(7) to preserve and strengthen positive African cultural values in a spirit of tolerance, dialogue and consultation, and to contribute to the moral well-being of society;
(8) to contribute to the promotion and achievement of African unity.

The criticism to add. The duties are not enforceable against individuals by any procedure in the Charter, and states may invoke them to justify restricting rights. The Charter also contains “clawback” clauses (rights exercised “subject to law and order” or “within the law”) and no derogation clause. The Commission has answered both points: national law cannot override the Charter, and because there is no derogation clause, the rights cannot be suspended even in an emergency.

5. The African Commission on Human and Peoples’ Rights

Established under Article 30, inaugurated in 1987, with its seat at Banjul, The Gambia. It has eleven members, African personalities of the highest reputation, serving in their personal capacity for six years and re-eligible (Arts. 31, 36). Its functions under Article 45 are to promote human and peoples’ rights (studies, seminars, recommendations, drafting principles), to protect them under the conditions laid down by the Charter, and to interpret the Charter at the request of a state party, an AU institution or an African organisation.

6. The three procedures for implementation

(a) State reports (Art. 62). Every two years each state submits a report on the legislative and other measures taken to give effect to the Charter. The Commission examines it in public with the state’s representatives and adopts concluding observations. Many reports are late or never submitted.

(b) Inter-state communications (Arts. 47–54). A state that believes another has violated the Charter may draw the matter to that state’s attention by written communication, or refer it directly to the Commission. The Commission seeks an amicable solution and, failing that, prepares a report with recommendations to the Assembly of Heads of State and Government. Only one such case has been decided: DR Congo v. Burundi, Rwanda and Uganda (2003).

(c) Other communications (Arts. 55–59). Communications from individuals and NGOs. No declaration by the state is required. Admissibility conditions under Article 56 include: the author must be identified (anonymity to the public may be requested); the communication must be compatible with the Charter, not written in disparaging or insulting language, and not based exclusively on news media; domestic remedies must be exhausted unless the procedure is unduly prolonged; it must be submitted within a reasonable time; and the matter must not have been settled by another procedure. Under Article 58, where communications reveal a series of serious or massive violations, the Commission draws the attention of the Assembly, which may request an in-depth study. Under Article 59 all measures remain confidential until the Assembly decides otherwise.

7. The African Court on Human and Peoples’ Rights

Created by a Protocol adopted at Ouagadougou in 1998, in force on 25 January 2004, seated at Arusha, Tanzania, with eleven judges. Cases may be brought by the Commission, by states parties and by African intergovernmental organisations. Individuals and NGOs with observer status before the Commission may bring cases directly only against a state that has made a declaration under Article 34(6) of the Protocol (read with Article 5(3)). Few states have done so, and several have withdrawn. The Court’s judgments are binding and it may order compensation and provisional measures. A 2008 Protocol to merge it with the African Court of Justice into an African Court of Justice and Human Rights has not entered into force.

8. Leading decisions

SERAC and CESR v. Nigeria (Commission, 2001), the Ogoni case. Oil extraction by a state consortium with Shell polluted Ogoniland, and security forces attacked villages. The Commission found violations of the rights to health (Art. 16), to dispose of natural resources (Art. 21) and to a satisfactory environment (Art. 24), and read into the Charter rights to food and housing.
Endorois v. Kenya (Commission, 2010). Eviction of a pastoralist community from its ancestral land around Lake Bogoria for a game reserve violated its rights to property, religion, culture, natural resources and development (Art. 22).
African Commission v. Kenya (Court, 2017), the Ogiek case: eviction of the Ogiek from the Mau Forest violated their rights as an indigenous people.

Other African instruments: the African Charter on the Rights and Welfare of the Child (1990) and the Maputo Protocol on the Rights of Women in Africa (2003).

How this is examined

January 2026: “Duties of people under African Charter” (6 marks). June 2025 and February 2025: “Explain the (three main) procedures for implementation of the African Charter” (10 marks), with “African Commission” as a note. August 2024: “Explain the human and peoples’ rights enlisted under African Charter”. For duties, write section 4 in full. For implementation, sections 5 to 7: the Commission, the three procedures in order, and the Court as the later addition. For rights, sections 2 and 3 with the distinctive features stated at the start.