Book Notes

The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000. Edited by Malcolm Evans and Rachel Murray. Cambridge, England: Cambridge University Press, 2002. Pp. 418. $75.00, paper.

In recent decades, the peoples of Africa have been hit hard by natural disasters, civil war, ethnic and religious conflict, and widespread human rights abuses. In order to support the healing and progress of the continent, the Organization of African Unity (“OAU”) created the African Charter on Human and Peoples’ Rights, which entered into force in 1986. With the Charter, the OAU sought to bring human rights out of a Western-dominated framework and ground it solidly in African values and concerns. For instance, the Charter outlines the individual’s duties towards the state in addition to the state’s duties toward the individual, reflecting African values of reciprocity and collaboration. Unfortunately, many within and outside the

region have been sorely disappointed by the enforcement of the Charter under the African Commission on Human and People’s Rights (founded by the OAU). They commonly complain that the Commission is overly deferential to state governments, takes too long to process Communications (submissions of human rights violations under the Charter), and overemphasizes the goal of promoting dialogue while underemphasizing the importance of deterring human rights abuses.

The African Charter on Human and Peoples’ Right provides a constructive, no-frills critique of the Commission’s implementation of the Charter. The mission of the book is straightforward: to evaluate the Charter’s efficacy in practice, not theory. To this end, editors Malcolm Evans and Rachel Murray have assembled an impressive international cast of eleven African human rights specialists from academia, NGOs, international law bodies, and the Commission itself. They largely avoid taking an adversarial, exposé-style approach, seeking instead to combat pessimism about the African regional human rights system with realistic, informed, critical optimism.

The book opens with a look forward in “Future Trends in Human Rights in Africa” by Gino Naldi. At its inception in 1963, Naldi explains, the OAU was more expressly concerned with bolstering state sovereignty and ridding the continent of colonialism’s traces than with promoting and protecting human rights. The Charter’s entry into force, Naldi argues, represented an important step forward for human rights in Africa. He acknowledges weaknesses in the Charter as it was written, such as “clawback clauses” that appear to subject individual civil and political rights to the dictates of state law. However, Naldi refuses to regard the Charter as “fatally flawed.” Instead, he highlights recent efforts of the OAU to give the Commission more bite and to zero in on the issues of greatest concern to Africa, such as discrimination against women and the persecution of those living with HIV/AIDS. Ultimately, Naldi is guardedly hopeful about the potential of the system to become an effective regional human rights instrument.

The next section takes the reader through the failures and successes of the Commission in its nitty-gritty, day-to-day operations. Writing on the states’ reporting mechanism, Malcolm Evans, Tokunbo Ige, and Rachel Murray document the widespread lack of compliance with the Charter’s bi-annual-state-reporting requirement. They recommend greater forcefulness on the part of the Commission in obtaining and responding to state reports. On the Commission’s rulings on admissibility, Frans Viljoen applauds the Charter’s unique procedural flexibility, such as its acceptance of Communications from non-victims. Viljoen criticizes the Commission, however, for applying too strict a standard in barring Communications. On the Commission’s evidence and fact-finding, Murray makes a strong case for the Commission to step out of its role as promoter of OAU solidarity and to take its role as finder and trier of fact more seriously. According to Murray, the Commission must strengthen its credibility by vigorously enforcing evidentiary standards for states and using country missions to conduct more thorough investigations

of abuses. The theme resounding throughout this section is the need for greater political will and consistency in the Commission’s procedures.

The book also touches on more theoretical, ideological issues of the Charter’s enforcement. Articles by Christof Heyns and Chidi Anselm Odinkalu examine the normative framework that the Charter creates for the treatment of distinct categories of rights: civil, political, economic, social, and cultural. One of the book’s highlights also appears in this section: “The Challenge of Culture for Human Rights in Africa: The African Charter in a Comparative Context,” by N. Barney Pityana, a current member of the Commission. In Pityana’s view, universality and cultural relativism need not exist as two opposing poles of approaches to human rights, where ne’er the twain shall meet. Pityana commends the OAU’s intention of centering its human rights approach on African culture and traditions but rejects the OAU’s interpretation of universal human rights as a Westernized, neocolonial proposition. The appropriate balance, according to Pityana, is to incorporate both approaches and apply universal human rights principles contextually, protecting individual rights liberally but with an eye toward local values and priorities.

Finally, the book’s authors highlight the roles of different players in the African regional human rights system: NGOs (Ahmed Motala), Special Rapporteurs (Malcolm Evans and Rachel Murray), the imminent African Court on Human and People’s Rights (Julia Harrington), and the Commission itself (Victor Dankwa). The writers in this section unflinchingly reveal the stitches holding the African regional system together and the lack of political will on the part of the Commission and of states that is weakening its authority. Still, each concludes by looking toward possibilities for strengthening the framework. According to these well-informed participants and observers, the Commission needs to promote broader awareness of the Charter across the continent, greater access for individuals to its mechanisms, and more courageous collaboration with states and NGOs alike.

This book is a valuable and unique contribution to scholarship about human rights in Africa. It would have strongest appeal to human rights practitioners and academics with an interest in Africa or comparative international human rights studies. Although it may not make for particularly vivid reading, the book’s clarity and conviction also make it an engaging and worthwhile experience for readers with a less single-minded interest in the African region.

—Monica Eav

Copyright © 2003 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 16, Spring 2003